Davinder
Pal Sehgal & Anr Vs. M/S Partap Steel Rolling Mills Pvt. Ltd. & Ors
[2001] Insc 652 (13 December 2001)
M.B.
Shah & B.N. Agrawal 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.
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.
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.
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