Civil Revision No. 3766 of 2008 (1)
In the High Court of Punjab & Haryana at Chandigarh
Civil Revision No. 3766 of 2008 (O&M)
Date of decision : 1.4.2009
Mandeep Singh and another ..... Petitioners
vs
Jaspal Singh and others ..... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Ranjit Saini, Advocate, for the petitioners.
Mr. Vikram Singh, Advocate, for the respondents.
Rajesh Bindal J.
Challenge in the present petition filed under Article 227 of the
Constitution of India is to the order dated 12.4.2008, passed by the learned
court below, whereby the application filed by the petitioners/plaintiffs for
restoration of the suit which was dismissed in default on 16.10.2006, was
dismissed.
Learned counsel for the petitioner submitted that the
petitioners/plaintiffs in the present case are minors, represented through a
guardian. Non-appearance of the petitioners on the date fixed i.e. on
16.10.2006 was inadvertent as they had noted a wrong date as 16.11.2006.
Immediately on the date as was noted by the petitioners, when they came to
know that the suit has already been dismissed in default on 16.10.2006, an
application for restoration thereof was filed. The same was dismissed
merely on account of the fact that it was delayed by one day. The
submission is that non-appearance of the petitioners on the date fixed was
neither intentional nor willful. As the cause shown by them for non-
appearance was sufficient, the application should have been allowed.
On the other hand, learned counsel for the respondents
submitted that on the date when the case was fixed before the learned court
below, the counsel for the petitioners appeared and pleaded no instructions.
In this view of the matter, nothing lies in the mouth of the petitioners to
contend that they had noted a wrong date as their counsel was present in the
Civil Revision No. 3766 of 2008 (2)
court and pleaded no instructions.
After hearing learned counsel for the parties, I find merit in the
submissions made by the learned counsel for the petitioners. It is a case
where the petitioners are minors and represented through a guardian. In case
on one date of hearing, they had not appeared on account of the fact that
they had noted a wrong date, the court should not have dismissed the case in
default. Even otherwise, an application for restoration was filed
immediately on the date which was noted by the petitioners as the next date
of hearing and the same having been filed on the same very day of
knowledge of the petitioners, the suit dismissed in default should have been
restored. The efforts should be made to decide the dispute between the
parties on merits unless the suit is hopelessly barred under any provisions
of law.
For the reasons mentioned above, the impugned order passed
by the learned court below is set aside and the suit filed by the
petitioners/plaintiffs is restored to its original number, to be dealt with on
merits. The parties through their counsel are directed to appear before the
concerned court on 16.5.2009.
The revision petition is disposed of.
1.4.2009 ( Rajesh Bindal) vs. Judge