MALOOK SINGH Vs. BALJIT SINGH

JUDGEMENT

(1.) The peculiar facts giving rise to this revision petition are that the plaintiff filed a suit for the recovery of Rs. 23,145/- in January 1985 on the basis of a pronote which was decreed ex-parte on April 8, 1985. An application for a setting aside the ex-parte decree was preferred on July 17, 1985 inter alia , contending that no service had been effected on the defendant nor he has refused the summons. The summons were never tendered to him for service and the ex-parte decree was procured by the plaintiff by fraud. The issues were framed and the application was being contested on merits when the same was dismissed in default on July 25, 1986. An application to restore the said application was preferred on August 25, 1986 on the ground that absence of the petitioner was not intentional as. the counsel was busy in the District Courts before District Judge when the application was called and the petitioner defendant was himself not present as he was ill.

(2.) The courts below after appreciating the evidence found that applicant failed to prove that he was alling on the dale of bearing. It was further observed that non-appearance of the counsel does not constitute a sufficient cause for restoration. It was further observed that the decree had already been satisfied and the proceedings were being taken to harass the plaintiffs

(3.) Learned counsel for the petitioner contends that for the ills of counsel, the petitioner should not be made to suffer. Even if the petitioner failed to prove sufficient cause strictly and was negligent, cost is the panacea. It is contended in the course of arguments that the suit was filed in January, 1985 while the refusal of the defendant on the summons was recorded on January 15, 1985 without there being any attesting witness in whose presence the refusal was made. The petitioner is only praying for a chance to prove that the refusal recorded on the summons is fraudulent and he was never served. Counsel also relied upon Smt. Chander Kanta v. M/s. Sulekh Chand Sumer Chand, 1978 RajdhaniLR 326 and Buta Singh v. Puro and another, 1979 PunLJ 259. The conspectus of these judgments is that ordinarily cases dismissed in default should be restored unless gross negligence of the parties is shown. The sins of advocate should not be allowed to visit the party, as the object of the courts is to advance justice and not to gag the same. A party should not be permitted to play the game of chess relying on the procedural rules, in order to deprive the litigant of his substantive fight.