SEWA SINGH Vs. HARBANS SINGH

JUDGEMENT

(1.) Gurnam Singh petitioner, who is the legal representative of Sewa Singh (plaintiff before the trial Court) has filed the instant revision petition against the order dated 18-10-1993, passed by the trial Court, vide which an application under order IX, Rule 4 of the Code of Civil Procedure (hereinafter referred to as the Code) filed by the petitioner with other legal representatives of Sewa Singh for restoration of the suit has been dismissed.

(2.) The brief facts of the case are that the aforesaid Sewa Singh was having four sons and three daughters. He was owning certain landed property. One of his son, namely Harbans Singh respondent No. 1 (defendant No. 1 before the trial Court) sold 10 kanals 17 marlas of land owned by his father Sewa Singh as his attorney in favour of his wife Smt. Baljinder Kaur respondent No. 2 (defendant No. 2 before the trial Court), vide sale deed dated 11-9-1989. When Sewa Singh came to know about the said illegal act, he filed a suit for declaration against respondent Nos. 1 and 2 on 8-5-1990 challenging the sale deed dated 11-9-1989 being illegal and void and not binding on his right. Pursuant to the notice issued in that suit, respondent Nos. 1 and 2 appeared. They sought time to file written statement. In the meantime, Sewa Singh plaintiff expired on 22-12-1990. Thereafter, the petitioner along with other legal representatives (who are remaining sons and daughters of deceased Sewa Singh) filed application for impleading them as plaintiffs in the suit. The contesting respondents sought time to file reply to the said application. For that purpose, the case was adjourned to 8-2-1991. On 8-2-1991, they again sought time and the case was adjourned to 18-2-1991. On that date, none of the parties was present and the suit was dismissed in default under Order IX, Rule 3 of the Code by passing the following order : Present: None. Case called several times. It is 3.40 p.m. Suit dismissed in default under Order 9. Rule 3, CPC. File be consigned to record. Sd/- 18-2-91.

(3.) On 12-4-1991, the petitioner and pro forma respondents filed the instant application under Order IX, Rule 4 of the Code for restoration of the aforesaid suit. In the application, they stated that on 18-2-1991, the case file of the aforesaid suit was not put up before the Court and the Reader of the Court gave them 26-2-1991 as next date of hearing. On 26-2-1991, both the parties were present and the Reader of the Court asked for an application to fix the date of the case. The said application was filed by Dilbagh Singh, one of the legal representatives of deceased Sewa Singh. On that application, the next date of hearing was given as 18-3-1991. Again on 18-3-1991, both the parties came present in the Court. Then they came to know that the suit was already dismissed in default on 18-2-1991 under Order IX, Rule 3 of the Code. Therefore, the instant application for restoration of the aforesaid suit was filed.