Surain Singh and Others vs Khiwan Singh and Others

Ashok Bhan, J.—Suit filed by the plaintiff-petitioner (hereinafter referred to as the petitioner) was ordered to be dismissed for non-prosecution on 10.8.1977 as the counsel for the petitioner failed to appear on the said date. It was called for hearing before lunch but as the counsel for the petitioner was not present, the same was ordered to be taken up after lunch. The case was again called for at 2.30 P.M. but again counsel for the petitioner was not present and the case was again adjourned to be taken up on the later part of the day. Case was again taken up at 4.15 on the same date but neither the petitioner nor his counsel was present and the case was ordered to be dismissed for non-prosecution. Counsel for the defendant-respondents (hereinafter referred to as the respondents) was present in Court at 4.15 p.m. and the said case was dismissed for non-prosecution in his presence under Order 9 Rule 8 C.P.C.

Petitioner filed an application under Order 9 Rule 9 C.P.C. on 5.9.1977 for setting aside the order of dismissal for non-prosecution. Application was dismissed by the trial Court on the ground that case had been called thrice but neither the petitioner nor his counsel appeared that the application for restoration though filed within the period of limitation but the same could have been filed immediately after when it had come to the notice of the petitioner that his suit had been dismissed for non-prosecution which shows that action of the petitioner was not bona fide. Another reason given by the trial Court is that on the earlier three dates petitioner failed to produce his evidence and, therefore, the application filed by him was not bona fide and the petitioner was trying to delay the proceedings in the suit.

Against the order of the trial Court an appeal was preferred which was also dismissed by the first appellate Court on 18.12.1982. Aggrieved against the non-restoration of the suit, petitioner has filed the present revision petition which was admitted.

This petition has come up for final disposal after a lapse of more than 12 years. Relying upon Buta Singh v. Puro and Anr. 1979 P.L.J. 259, Smt. Maan Kaur and Ors. v. Santa Singh and Anr. (1982)84 P.L.R. 493, Satpal Maini v. Shri Ram Ashra (Mistry) 1987 P.L.J. 413, Ram Pal and Ors. v. Jagrup Singh and Ors. 1987 P.L.J. 355 and Bishnu Bhagwan and Ors. v. Bani Madho Saran 1990 P.L.J. 404, counsel for the petitioner argued that restoration of the suit dismissed in default should not be denied simply because the petitioner failed to prove strictly sufficient cause for his non-appearance; that for the fault of the lawyer who was entrusted to conduct the case, the parties to the litigation should not be made to suffer. It has been held in Buta Singh''s case (supra) as under :-

"It has been observed time and again that restoration of a suit dismissed for default should not be denied simply because the plaintiff fails to prove strictly sufficient cause for his non-appearance. Ordinarily, if the application is made within limitation, the suit ought to be restored and for the negligence on the part of the party, the other party can be compensated with costs. The courts below in ignoring the judgments given by this Court, acted illegally and thus erroneously declined the application for restoration."

As against this, the case of the respondents is that petitioner failed to show sufficient cause for restoration of the suit which had been dismissed in default after appreciating the evidence led by the parties; that this Court should not interfere in exercise of its revisional, jurisdiction as in the finding arrived at by the courts below there is no error in the exercise of jurisdiction.

Counsel for the parties have been heard.

In Smt. Maan Kaur''s case (supra) this Court held that where the application was moved within limitation and no mala fide was found on the part of the plaintiff for non appearance than this itself was a sufficient reason to restore the suit. In The Lakshmi Commercial Bank Ltd. v. Hans Raj Sayal (1981) 83 P.L.R. 247, it has been held by this Court that if counsel for the appellant-plaintiff is engaged in another court and the suit is dismissed for default, it would be sufficient cause to restore the same. Restoration of case should not ordinarily be denied unless the party is found guilty of contumacious negligence or willful default. In Satpal Maini''s case (supra), Ram Pal''s case (supra) and Bishu Bhaghwan''s case (supra), this Court reiterated its earlier view and held that the application of restoration should not ordinarily be denied unless and until the conduct of the parties who is applying for restoration of the suit dismissed in default is contumacious and not bona fide that the suit should be restored and the other party should be compensated with cases. In Rafiq and Another Vs. Munshilal and Another, their Lordship of the Supreme Court held that the parties should not be made to suffer for the fault of a lawyer; that an innocent party cannot be made to suffer merely because his chosen advocate defaulted. It was observed by their Lordships as under :-

"........What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law."

In the present case, application had been filed by the petitioner for restoration within the period of limitation. In the application as well as in the statement made in court on behalf of the petitioner, it was stated that non-appearance of the counsel for the petitioner was due to the fact that the counsel was busy in some other court. No doubt, the case had been called thrice on the same day and neither the petitioner nor his counsel was present but this by itself would not disentitle the petitioner to get the suit restored on showing sufficient cause for non-appearance. Simply because the petition was filed after 25 days of the dismissal of the suit, it cannot be held that there was any mala fide intention on the part of the petitioner to delay the proceeding in the suit. Petitioner could have filed the application for restoration within the period of limitation prescribed which he did in this case. He cannot be non-suited only on the ground that the application was not filed on the next day of the dismissal of the suit or immediately thereafter. So far as the granting of three opportunities to the petitioner to produce his evidence is concerned it would be seen that on the first date fixed for recording the evidence, the case was adjourned at the request of counsel for both the parties to 2.5.1977. On the said date, Presiding Officer of the Court did not hold the Court and the case was postponed to 6.6.1977. On that date also, no evidence was present and the case was adjourned to 9.8.1977 for evidence of the petitioner. The case was thereafter ordered to be posted for 10.8.1977. What happened on that day has already been noted above. On the first date fixed for recording of evidence, the case was adjourned on the request of counsel for both the parties. Failure to produce evidence on the two subsequent dates, it cannot b held that petitioner was not pursuing his suit in a bona fide manner simply because he failed to produce the evidence on the two subsequent dates. It has not been recorded in the orders that the petitioner had been directed to produce the evidence at his own risk and responsibility. It is not clear from the orders as to whether there were any summoned witnesses or as to whether summoned witnesses had been served or not for the date fixed for recording of the evidence.

For the reasons stated above, I am of the view of that the Courts below have erred materially in the exercise of their jurisdiction in not ordering the restoration of the suit specially in view of the various judgments of this Court which had been rendered prior to the decision given by the first appellate court.

Counsel for the respondents then argued that it would not be just and fair for the parties to restore the suit at this stage as the suit had been filed nearly 20 years ago. This circumstance cannot be taken against the petitioner. This revision petition is pending for the last 12 years. Simply because this court could not take up this case for the last 12 years, the petitioner cannot be made to suffer for the same.

Counsel appearing for the respondents relying upon The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, , Manick Chandra Nandy Vs. Debdas Nandy and Others, and Masjid Kacha Tank, Nahan Vs. Tuffail Mohammed, , laid a lot of emphasis that this Court should not interfere in the exercise of their jurisdiction either by assuming jurisdiction or failed to exercise jurisdiction or acted with material irregularity in the exercise of its jurisdiction. There is no quarrel to this proposition of law but in this particular case I find that the Courts below acted with material irregularity in the exercise of their jurisdiction in not restoring the suit when the application for restoration had been filed within the prescribed limitation and there was no lack of bona fide on the part of petitioner or his counsel for non-appearance in the Court on the date fixed.

For the foregoing reasons, this revision petition is accepted, the impugned orders of the courts below are set aside. The suit is ordered to be restored subject to payment of Rs. 500/- as costs to compensate the respondents for the inconvenience caused to them. Parties through their counsel are directed to appear before the trial Court on 9.10.1995. Petitioner is directed to pay/deposit the costs in the trial Court on the date fixed. A further direction is issued to the trial Court to dispose of the suit within six months from the date of appearance i.e. 9.10.1995. Parties through their counsel are directed to cooperate with the trial Court in the disposal of the suit within the period granted by this Court and produce their evidence at their own risk and responsibilities. Whenever, the parties seek to summon any witness, they shall take Dasti summons for effecting service on those witnesses. No costs.