SHIV DAYAL SINGH Vs. MOHINDER SINGH

JUDGEMENT

(1.) THE Petitioners were Plaintiffs in suit No. 498 of 1972 in the court of Munsif South, Lucknow. The case was fixed for hearing on 29 -10 -1976. According to the Petitioners, Petitioner No. 2 who was an advocate and was looking after the case had left the court room only for five minutes and during that short interval the suit was dismissed in default. When he came back he was told that the case had been called out at the request of the Defendant No. 2 who was present in court and therefore it was dismissed. The very next day an application was made for restoration of the case. The application was accompanied by an affidavit of Petitioner No. 2 setting out the above allegations. The learned Munsif apparently did not like the allegation in para 3 of the affidavit to the effect that the Petitioner had been told by the court that the case had been called out of turn at the request of Defendant No. 2 who was present in court. The restoration application was accordingly dismissed on 29 -10 -77 with the observation that this allegation "appears unfounded". It is surprising that the restoration application should have come up for disposal one year after the same had been moved. The learned Munsif however made no mention of the averments in paras 1 and 2 of the affidavit of Petitioner No. 2 that the latter had gone out to attend another court on the second floor of the building and had been away only for five minutes. Although the learned Munsif stated in the order that the affidavit has been perused this averment of Petitioner No. 2 on oath was not dealt with or disbelieved. When a counsel has gone out of the court room for only a few minutes and if he comes back the normal course is to accept his request for recall of an exparte order. However the learned Munsif thought otherwise.

(2.) THE Petitioners could have appealed against that order but instead they moved for review. This review petition was allowed by that court on 28 -8 -78. The learned Munsif pointed out that the averment made on oath by Petitioner No. 2, who was not only an advocate of fifty years standing but also an Ex. M.P., had not been controverted and there was no ground to disbelieve the same, and as the same had not been considered there was an error on the face of the record. Against this order the Defendants filed an appeal which has been allowed. It is against this appellate order that the Plaintiffs have, filed this writ petition.

(3.) THE learned District Judge has taken a hyper -technical view while allowing the appeal against the order of restoration of the suit. Of course, review petitions are not lightly allowed, but that principle applies when a case has been decided on merits after hearing the parties. However, in matters relating to restoration, that principle cannot be invoked. It has already been pointed out that the earlier order of the Munsif dated 29 -10 -77 was vitiated by non -consideration of relevant circumstances and as such, no fault can be found with the order allowing review of that order. The view taken by the appellate court results in irreparable injury to the Plaintiff and denial to him of his lawful remedy in view of provisions of Order 9 Rule 9 Code of Civil Procedure.