SUSHILA DEVI Vs. CHINT PURNI

JUDGEMENT

(1.) THE present petition is directed against the order dated 5. 2. 1992 made by Shri Nand Kishore Biriwal, Addl. Senior Sub Judge, Pehowa, whereby he has accepted the application filed by the petitioner and restored the suit which had earlier been dismissed as withdrawn. The facts as given in the impugned order as also in the grounds of revision are as under :respondent No. 1 Smt. Chint Purni filed the present suit challenging the judgment and decree passed in civil suit No. 147 of 1986 titled Shakuntla Devi etc. v. Chint Purni through Shri R. K. Gaur, Advocate, of Kaithal. On 14th June, 1989, Shri R. K. Gaur made an application for preponing the hearing of the suit which was then fixed for 20th July, 1989, as he wished to withdraw the same. The trial Judge recorded the statement of the learned advocate and in view of the statement made by him, dismissed the suit as withdrawn on the same day. On 2nd September, 1989, Smt. Chint Purni moved an application for restoration of the suit alleging that the same had been dismissed in default through the same advocate Shri R. K. Gaur on whose statement the suit had been dismissed as withdrawn this application was dismissed on 21st May, 1990 and a fresh application dated 21st May, 1990 was thereafter filed along with the application for condonation of delay. This application has been accepted by the impugned order dated 5th February, 1992 against which the present petition has been filed.

(2.) MR . Arvind Singh, learned counsel for the petitioner, has urged that Smt. Chint Purni, respondent No. 1 was bound by the statement made by her counsel and, as such, once having withdrawn the suit, the same could not be restored. On the other hand, learned counsel for the respondent has urged that Shri R. K. Gaur, Advocate, was not competent to withdraw the suit and, in any case, there seemed to be some misconception about the whole episode as Smt. Chint Purni was under the impression that the suit had been dismissed in default, whereas it had, in fact, been withdrawn. It appears to me that Smt. Chint Purni had been misled as to the true affairs because she had no one to guide her. Moreover, keeping in view the facts of the case and more particularly that Smt. Chint Purni plaintiff/respondent No. 1 is none other than the mother of the three defendants, it is in the interest of justice that the suit be disposed of on its merit.