Full Judgment Text
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CASE NO.:
Appeal (civil) 8503 of 2001
PETITIONER:
DAVINDER PAL SEHGAL & ANR.
Vs.
RESPONDENT:
M/S PARTAP STEEL ROLLING MILLS PVT. LTD. & ORS.
DATE OF JUDGMENT: 13/12/2001
BENCH:
M.B. Shah & B.N. Agrawal
JUDGMENT:
B.N.AGRAWAL, J.
Leave granted.
This appeal is against the order dated 30th November, 2000
passed by Punjab & Haryana High Court in C.R. No. 397 of 1998 whereby
order passed by trial court restoring the suit which was dismissed for
default, has been set aside and application under Order 9 Rule 9 of the
Code of Civil Procedure (hereinafter referred to as the ’Code’) has been
dismissed.
The plaintiffs/appellants filed a suit for declaration that deed of
conveyance dated 10th October, 1980 executed by defendant No.2 in
favour of defendant No.1 was void and for recovery of possession of the
property conveyed thereunder. The plaintiffs had settled abroad in
Thailand and appointed one Shri Gurdip Singh as their attorney who
appointed one Shri Suresh Sharma, Advocate, to represent them in the
suit. On 13th June, 1988, the suit was adjourned to 20th July, 1988 but as
during the night intervening between 19th and 20th July, 1988, father of the
aforesaid Shri Suresh Sharma suffered heart attack, he remained busy in
the treatment of his father who later died. Due to that reason, Shri Suresh
Sharma, Advocate, could not appear in court on 20th July, 1988, on which
date the trial court directed to issue notices to the plaintiffs. In the evening
of 20th July, 1988, the plaintiffs’ counsel Shri Suresh Sharma informed
Shri Gurdip Singh that he could not appear on 20th July, 1988 and on the
next day, i.e., on 21st July, 1988, Shri Gurdip Singh came to Palwal court
and learnt that as nobody appeared in the suit on the 20th July, 1988,
notices were directed to be issued to the plaintiffs, but he was not told
about next date fixed in the case. The plaintiffs did not receive any notice
as they were abroad nor any notice was served upon their attorney who
after waiting for the notice, came to court with Shri Suresh Sharma on 18th
October, 1988 for making inquiry about the case when it transpired that
24th August, 1988 was the next date fixed in the suit on which date, the
court recorded in the order that the notice was ordered to be issued on 20th
July, 1988 for being served upon the plaintiffs, but in spite of the fact that
service report had not been received back, as nobody appeared on behalf
of the plaintiffs, the suit was dismissed for non prosecution. Thereupon on
the same day, an application under Order 9 Rule 9 of the Code was filed
stating therein the aforesaid facts.
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The application for restoration was dismissed for non
prosecution on 21st November, 1994 as nobody appeared on behalf of the
plaintiffs whereupon another application was filed on 21st December, 1994
for restoration of the same, which was dismissed on 19th September, 1995
by the trial court. When the said order was challenged by way of C.R.No.
556 of 1996 filed before the High Court, the same was allowed on 27th
August, 1996, by which order of trial court was set aside and application
under Order 9 Rule 9 of the Code which was filed on 18th October, 1988
for restoration of the suit was restored and the trial court was directed to
dispose of the same on merit. It may be stated that after remand, on 28th
October, 1997 a petition was filed under Section 5 of the Limitation Act for
condonation of delay in filing the restoration application.
The trial court by its order dated 12th December, 1997 having
found that sufficient cause was shown for restoration, allowed the
application and restored the suit to its original file. When the said order
was challenged before the High Court in revision, the same has been
allowed, the order of the trial court restoring the suit set aside and
application for restoration dismissed on the ground that there was no
consideration by the trial court on the point of limitation. Hence, this
appeal by way of special leave.
Learned counsel appearing on behalf of the appellants
submitted that the grounds for restoration as well as condonation of delay
were fully enumerated in the restoration application, a rejoinder whereto
was filed and the trial court while passing the order for restoration, having
considered facts stated in the restoration application and rejoinder and
being satisfied with the cause shown in the restoration application would
be deemed to have condoned the delay in filing the restoration application
as such the High Court was not justified in interfering with the order of the
trial court as there was no error of jurisdiction therein. On the other hand,
learned counsel appearing on behalf of the respondents submitted that this
Court should not interfere with the impugned order as the application for
restoration was earlier dismissed for non prosecution.
We have perused the restoration application as well as petition filed
under Section 5 of the Limitation Act for condonation of delay in filing the
same. It appears that in the application for restoration, all relevant facts
have been stated not only to show that the plaintiffs had sufficient cause
for non appearance on 24th August, 1988 but also to show sufficient cause
for condonation of delay in filing the restoration application. This is the
reason why in the petition for condonation of delay, it has been simply
stated that facts stated in the restoration application may be taken into
consideration for condonation of delay in filing the restoration application.
Therefore, merely because in the order of trial court, specifically, there is
no reference to petition for condonation of delay, it cannot be said that it
did not consider the same. From a bare perusal of the order, it would
appear that the grounds stated in the restoration application for non
appearance on 24th August, 1988 as well as delay in filing the restoration
application having found favour with the trial court, the suit has been
restored, therefore, it cannot be said that the order of restoration has been
passed without condoning the delay in filing the restoration application.
The submission of the learned counsel appearing on behalf of the
respondents that application for restoration filed on behalf of the plaintiffs
was dismissed earlier for non prosecution cannot be taken to be a ground
for throwing out the restoration application as the High Court on the earlier
occasion set aside order of the trial court whereby restoration application
was dismissed for non prosecution and the said order attained finality. In
view of these facts, we are of the opinion that trial court had not acted in
the exercise of its jurisdiction illegally or with material irregularity and
accordingly the High Court was not justified in interfering with its order in
the exercise of revisional jurisdiction.
The appeal is accordingly allowed, impugned order passed by
the High Court is set aside and that passed by the trial court is restored.
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In the circumstances of the case, there shall be no order as to costs.
J.
[ M.B.SHAH ]
J.
[ B.N.AGRAWAL ]
December 13, 2001.