ASHA BHARDWAJ Vs. MAHARAJ KISHAN

JUDGEMENT

(1.) This revision petition is directed against the order of the trial Court refusing the restore the suit.

(2.) The petitioner/plaintiff filed a suit for permanent injunction which was dismissed in default of appearance of the parties on 25th February, 1986. An application was filed on 24th March, 1986 for restoration of the suit on the ground that when the case was called for hearing the counsel of the plaintiff was busy in some other court and by the time he reached the court the case had already been dismissed in default. It was further stated that the absence of the plaintiff or her counsel was unintentional and that the case was dismissed for default in the early hours of the day. The respondent/defendant controverted the pleas made in the application. The trial judge after referring to the interim orders passed in the suit when the case was called for hearing found that no good reason was assigned for non-appearance. The trial judge is in error in declining the prayer for restoration of the suit wholly on unjustified reasons. Un-disputably the parties after entrusting their briefs to their counsel feel satisfied and assured that their respective counsel will put in appearance in the courts when the case is called for hearing. If on any date the counsel does not appear for one reason or the other, the party cannot be made to suffer. The party who has defaulted can be burdened with costs and if in a given case the party deliberately omitted to appear when the case was called for hearing even exemplary costs can be imposed upon it. The trial judge did not appreciate that a case should not go in default and the parties who had come to the court must have had the satisfaction that they had ample opportunity to put forward their case and this has been denied to the petitioner/plaintiff.

(3.) For the reasons aforesaid, the revision petition succeeds. The order under challenge is set aside. The application for restoration of the suit is allowed subject to payment of Rs. 500/- (five hundred) as costs. Costs be paid within four days from today. The suit is restored at its original number. The trial judge is directed to dispose of the same expeditiously. Parties through their counsel are directed to appear before the trial Court on 20th December, 1990.