PRABHATI LAL Vs. GURMULDL SINGH

JUDGEMENT

(1.) -Prabhati Lal Petitioner filed a suit for Rs. 10,744.00 under Order 37 of the Code of Civil Procedure (for short 'the Code') on the basis of a pronote alleged to have been executed by Gurmukh Singh, defendant. The trial court issued summons under Order 37 of the Code to the defendant and adjourned the suit to 12th October, 1984. From the record it appears that the defendant was served on 25th July, 1984. On 12th October, 1984 neither the plaintiff nor the defendant appeared before the trial court and the suit was dismissed for default of appearance. The plaintiff filed an application under Order 9, Rule 4 of the Code for restoration of the suit. He has alleged that he engaged a counsel Shri Mohinder Singh, Advocate and he was held up in some other matter in Patiala House that there was no motive for him to remain absent on 12th October, 1984 and that no prejudice would be caused to the defendant. An affidavit of Mohinder Singh, Advocate, counsel for the plaintiff was also filed. In the affidavit the Advocate has deposed that on 12th October. 1984 he was held up in Delhi High Court before Justice J.D. Jain in Criminal M.(M) No. 999 of 1983 and he could not appear in the above matter before the trial court. He has also deposed that the contents of the application for restoration are true to his knowledge. Reading the application and the affidavit together it is apparent that Mr. Mohinder Singh, Advocate appeared in the High Court in Cr. M. (M) No. 999 of 1983 and that he was held up in some matter in Patiala House. The rial court, however, dismissed the application for restoration on the ground that there was contradiction in the contents of the application and the contents of the affidavit. The affidavit verifies all the contents of the application besides deposing that the counsel was busy before J.D. Jain, J. in Crl. M. (M) No. 999 of 1983. Moreover, the High Court and courts in Patiala House are situated very near. It is also stated by the learned counsel for the petieioner that Mr. Mohinder Singh Advocate has got his seat at Patiala House. The trial court has observed that the name and nature of the case and the name of the court in which he was busy was not disclosed. From the affidavit it is clear that he was busy in the High Court. If the trial court was not satisfied and the facts were contested by the opposite party, the trial court ought to have given an opportunity to the applicant to substantiate the allegations contained in the application. This approach of the trial court in dismissing the application for restoration is hyper-technical. A litigant seeks justice from the court and he should not be punished for no fault of his. The plaintiff appointed the lawyer who conducted the case and the lawyer was busy in another court when the case was called. Counsel filed his own affidavit disclosing that the contents of the application were correct and be was busy in High Court in a particular case. The application for restoration was contested on behalf of the defendant before the trial court but no affidavit was filed by him. In Rafiq and another v. Munshi Lal and another, MR 1981 SC 1400 it has been held by the Supreme Court that the party should not suffer for the inaction of his counsel. In the present case the suit was dismissed on account of the absence of the plaintiff's counsel.

(2.) The trial court in this matter acted illegally in the exercise of its jurisdiction in dismissing the plaintiff's application for restoration of the suit. The impugned order is liable to be set aside and the same is set aside. The order dated 12th October, 1984 dismissing the suit of the plaintiff is also set aside. The suit is restored to regular hearing at its original number.

(3.) The defendant-respondent was served with the notice of this revision but he has not put in appearance. The suit is remanded to the trial court for decision in accordance with law. The trial court shall issue fresh summons of the suit under Order 37 of the Code of the defendant. The plaintiff is directed to appear before the Senior Sub Judge on 17th December, 1985 who may assign the case to a Subordinate Judge having jurisdiction in the matter. No order as to costs.