DHARAM DUTT Vs. HARI SARAN AND OTHERS

JUDGEMENT

(1.) By way of this petition filed under Article 227 of the Constitution of India, the petitioner/defendant has prayed for quashing of judgment passed by the Court of learned Additional District Judge-I, Shimla in Civil Miscellaneous Appeal No. 2-S/14 of 2012 dated 08.07.2013, vide which the learned Court below allowed the appeal filed by the present respondents/plaintiffs under Order 43 Rule 1 of the Code of Civil Procedure and while setting aside order dated 01.10.2011 passed by the Court of learned Civil Judge (Junior Division) (V), Shimla in Case No. 164-IV of 2007, learned appellate Court ordered Civil Suit filed by the respondents/plaintiffs titled Hari Saran Vs. Dharam Dutt to be restored to its original number subject to costs of Rs. 500/-.

(2.) Brief facts necessary for the adjudication of the present case are that a Suit filed by the present respondents/plaintiffs which was pending adjudication in the Court of learned Civil Judge (Junior Division), Court No. 5 Shimla was ordered to be dismissed in default on 07.09.2007. An application filed by the respondents/plaintiffs for setting aside order dated 07.09.2007 and for restoration of Civil Suit was also dismissed by the Court of learned Civil Judge (Junior Division), Court No. 5, Shimla vide order dated 01.10.2011. The application was rejected inter alia on the grounds that neither there were sufficient grounds for restoration of the Civil Suit which stood dismissed in default nor the application was maintainable and further that the application so filed was also barred by limitation.

(3.) In appeal, the Court of learned Additional District Judge-I vide judgment dated 08.07.2013 set aside the order so passed by the Court of learned Civil Judge (Junior Division), Court No. 5, Shimla dated 01.10.2011. It was held by the learned appellate Court that the application was not barred by limitation as the suit was dismissed in default on 07.09.2007 and application for restoration of the same was filed on 08.10.2007. Learned appellate Court further held that there was sufficient cause for the absence of the plaintiffs from the Court on 07.09.2007 as the plaintiffs had proved that due to noting of wrong date of hearing neither the plaintiffs not their counsel could put in appearance on 07.09.2007 when the Suit was ordered to be dismissed in default. Learned appellate Court also took note of the fact that while disallowing the application for restoration of the Suit, learned trial Court had discussed different dates on which the suit of the plaintiffs was fixed for evidence, which as per the learned appellate Court was not relevant at all because the fact which was to be taken into consideration was only as to whether the absence was due to some reasonable cause or it was intentional or deliberate. It was concluded by the learned appellate Court that un-rebutted statement of one of the plaintiffs was sufficient to prove that the absence of the plaintiffs or their counsel on 07.09.2007 was neither intentional nor deliberate but due to the reason of noting wrong date of hearing. On these basis, the learned appellate Court while setting aside order dated 01.10.2011, ordered the Civil Suit to be restored to its original number subject to cost of Rs. 500/-.