S SAGAR SURI Vs. TIKKA JAGJIT SINGH BEDI

JUDGEMENT

(1.) This order will dispose of application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure (for short "Civil Procedure Code") for review of order dated 23/1/2001 by which earlier application (I.A. No.6464/2000) under Order 47 Rule 1 Civil Procedure Code of the applicant seeking review of order dated 19/1/2000, restoring the suit was dismissed.

(2.) Facts necessary for disposal of this application are that the plaintiff filed a suit for rendition of accounts of dissolved partnership regarding premises on plot No.97, Panchsheel Park. New Delhi in July, 1977. The defendant died in July, 1997 leaving behind his wife, son, four daughters and two children of the deceased daughter as his legal heirs/legal representatives (hereinafter referred to as 'L.Rs. 1 to 7'). The plaintiff moved an application (I.A. No.9333/97) under Order 22 Rule 4 Civil Procedure Code for brining on record L.Rs. of the defendant, as the right to sue survived. Notice of the application was issued to the proposed L.Rs. On 19/1/1998, Mrs. Harvinder Kaur (L.R.) appeared on her behalf and on behalf of her sister Mrs. Tavinder Kaur. Copy of the application was supplied to her. Notices to the unserved L.Rs; were issued and the matter thereafter was adjourned from time to time. They remained unserved and on 9/11/1998 fresh notice for 22/2/1999 was issued for service on unserved L.Rs., subject to the payment of Rs.1000.00 to be deposited with Delhi Legal Aid Services Authority. The plaintiff failed to deposit the costs and to take steps to serve the unserved L.Rs., on 2/11/1999, the suit was dismissed under Section 35-13 Civil Procedure Code. It was ordered :-

(3.) On the same date, i.e. 2/11/1999, plaintiff moved an application for restoration of the suit (I.A.No.11011/99) under Order 9 Rule 4 read with Section 151 Civil Procedure Code pleading that the counsel for the plaintiff was under wrong impression that the case was listed in Court No.22 and he was waiting there, when he realised the mistake, and came to the Court, where the suit was listed and he was informed that the suit was already dismissed. However, when his restoration application came up for hearing on 3/11/1999, then he came to know that the suit was dismissed for non-payment of costs under Section 35-B Civil Procedure Code and was not dismissed in default. This application was adjourned to 19/1/2000. On that day (3/11/1999), the plaintiff deposited the costs of Rs.1000.00 with Delhi Legal Aid Services Authority. The plaintiff also filed another application (I.A. No.11351/99) under Section 148 read with Section 151 Civil Procedure Code for re-calling the order dated 2/11/1999 dismissed the suit and for enlargement of time to deposit the costs up to the date of filing of the application. Original receipt of payment of costs was also filed. It was pleaded that the plaintiff's application for brining on record the L.Rs. of the deceased-defendant was stilling pending disposal, Ms.Kamlesh Mahajan, who used to work with the counsel invariably used to appear in the Court of Joint Registrar. Neither the plaintiff nor his counsel knew about the costs having been imposed. It was pleaded that since the other party (proposed L.Rs.) were not appearing, so the rigour of Section 35-B Civil Procedure Code could not he attracted. The application. came up for hearing on 16/11/1999. Notices were ordered to be issued for 1/12/1999 through registered post, ordinary process as well as Dasti. Notices were sent by registered post to all the L.Rs. and were also served Dasti on Mrs. Praveen Kaur, Mrs. Harvinder Kaur and Mrs. Tavinder Kaur, who are residing at Delhi. None appeared on behalf of the proposed L.Rs. on 1/12/1999 and on 11/1/2000 when matter was adjourned to 12/5/2000.