KRISHAN DASS Vs. GHAN SHYAM & ORS.

JUDGEMENT

(1.) The present revision petition is maintained by the petitioner under section 115 of the Code of Civil Procedure, against the order dated 20.6.2017, passed by the Civil Judge (Jr. Division), Court No.2, Ghumarwin, District Bilaspur, H.P. in Civil Case No.2906 of 2010 in Registration No.1597/13, titled Krishan Dass v. Ghan Shyam and others , whereby the application of the petitioner under Order 9, Rule 4 C.P.C. alongwith an application under Section 5 of the Limitation Act, for restoration of Civil Suit No.6311 of 2005/2000 dismissed in default, after allowing the application seeking condonation of delay in moving such an application was dismissed.

(2.) Briefly stating the facts giving rise to the present appeal are that the applicant/plaintiff engaged counsel L.R. Verma in the case on his behalf. It has been averred that at that time learned counsel was requested by the plaintiff (hereinafter to be referred as 'petitioner') that he is unable to appear in the Court on each and every date of hearing and he agreed that the applicant will be called whenever his presence would be required. As per the applicant/petitioner, he remained ill for some time in the year 2009 and had gone out of State in connection with his domestic affairs for years 2009-2010 and was confident that his counsel is appearing in the Court and as he was not contacted by his counsel, he believed that there was no necessity for him to appear before the Court. It has been averred that he came to Ghumarwin on 6th August, 2010 and met his counsel, on which, he told that case was fixed for 24.3.2009, but as he was busy in another Court in Tehsil and as a result of which the case had been dismissed in default. Further, it has been averred that he came to know about dismissal for the first time on the said date, because of which, he could not move an application earlier. It has been averred that the learned counsel told him that he could not meet any person who could convey about the said fact to the plaintiff due to which the communication could not be made.

(3.) It has been alleged that notice of the application was issued to the respondents out of whom respondents No.6 to 10 were proceeded against exparte on 02.9.2011 and respondent No.4 was also proceeded against exparte on 11.4.2012 and the legal representative No.3 of respondent No.11 was proceeded against exparte on 03.7.2012 and L.R. No.1 of defendant No.11 was proceeded against exparte on 29.9.2012 and L.R. No.2 of defendant No.11 was proceeded against exparte on 13.12.2012. It has been alleged that the remaining respondents contested the application by filing separate replies. In the reply, the respondents denied the averments made in the application and averred that the applicant did not appear before the Court intentionally and no documentary proof regarding his illness had been attached with the case and also that the application has been filed on false and frivolous grounds.