KESSRIA MAHARAJ OF SINGHPURA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision has been preferred against the order of the Additional Commissioner, Jaipur dated 22. 5. 61. The applicants' suit was dismissed in default on 12. 9. 60. The applicants moved for restoration on the ground that the learned counsel appearing for them had been delayed in the preparation of the case and was to leave for the court at about 11 A. M. and that he had sent his clerk in advance at about 10-30 A. M. to inform the court of the same. THIS was rejected by the learned trial court on the ground that it did not disclose any sufficient cause for delay with the observation that the case was ordered to be dismissed in default at 11. 30 A. M. In appeal, the learned Additional Commissioner also rejected it with the observations "that if the learned counsel for the plaintiffs had learnt about the dismissal of the suit at 11 A. M. on that day, he could apply for restoration on the very day or the next day. But the restoration application was made after 2 days i. e. 14. 9. 61, which shows that the counsel for the plaintiffs was neither vigilant nor careful to attend the suit. The plea that the clerk of the plaintiffs' counsel had informed the court that he was calling the counsel, is not proved by the record of the case. Thus the counsel for the plaintiff had failed to establish that his non-appearance in the lower court was due to a bonafide reason". The learned lower appellate court had, therefore, dismissed the appeal suspecting the bonafides of the learned counsel of the applicants appearing in the trial court. O. 9, R. 9 C. P. C. nowhere makes restoration dependent upon the bonafides of the party or his counsel. What it lays down is that when a suit is dismissed in default under 0. 9,the party may apply for an order to have the order of the dismissal set aside if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as it deems fit. The restoration thus depends upon the sufficiency of the case for non-appearance and not on the bonafides thereof. The learned Additional Commissioner, therefore, committed an error in rejecting the application on the ground that he has done. As for the learned trial court, we do not think that it was justified to reject the application only on the ground that the learned counsel for the applicants had stated in his affidavit that he was to appear in the court at 11 AM when the court had dismissed the suit at 11. 30 A. M. The courts are there not to impose discipline on the parties but to administer law in such a way as to enable the advancement of justice. Both the learned lower courts have, therefore, failed to exercise the jurisdiction vested in them.

(2.) WE, therefore, accept this revision set aside the order of both the learned lower courts, and order that the suit of the applicants shall stand restored on payment of cost of Rs. 10/- (ten) each to both the respondents. .