SIMLA DEVI Vs. RAM LAL AND OTHERS

JUDGEMENT

(1.) The petitioner has challenged the order dated 27.3.2015 passed by the learned Court below whereby in an appeal filed by respondent nos. 1 and 2/ plaintiffs, the order dated 6.9.2014 passed by the trial Court dismissing the application for restoration of the suit, was set aside and the application was allowed.

(2.) Learned counsel for the petitioner submitted that on account of non-appearance of counsel for the plaintiffs on 26.10.2009, the suit was dismissed in default. The application for restoration was filed more than four months thereafter without showing any sufficient cause and also without accompanying any application seeking condonation of delay in filing the application when admittedly the application should have been filed within thirty days from the date of dismissal in default. The trial Court rightly dismissed the application for restoration vide order dated 6.9.2014.

(3.) However, the learned Lower Appellate Court allowed the appeal filed against the order of the trial Court and restored the suit merely on sympathetic consideration and not legally. While impugning the order, learned counsel for the petitioner submitted that firstly the application had to be filed showing sufficient cause for non-appearance on the date when the suit was dismissed in default and further sufficient cause for non-filing of the application for restoration within thirty days therefrom. Both are missing in the present case. Not only this, even application for condonation of delay is not there. Hence, the order passed by the learned Court below which is not legally sustainable and deserves to be set aside. In support of his plea, reliance was placed upon judgments of Hon'ble the Supreme Court in Ashis Kumar Hazra vs Rubi Park Co-operative Housing Society Limited and others, 1997 AIR(SC) 2724, N. Balakrishan vs M. Krishnamurthi, 1999 2 RCR(Civ) 578, and of this Court in Smt. Dev Bala Sehgal vs Devinder Pal Sehgal, 2001 4 RCR(Civ) 757, Mool Chand Yadav @ Ashok vs Phool Singh and another, 2010 5 RCR(Civ) 8, and Shakti Tripathi vs Supreeti Tripathi, 2013 170 PunLR 104.