JUDGMENT
R.S. Sodhi, J.
1. FAO 154/2002 is directed against the order dated 14th February, 2002, of the Additional District Judge in HMA No. 3/2002/2001, whereby the learned Judge has dismissed the application of the appellant herein under Order 9 Rule 9 read with Section 151 CPC for restoring the petition, which was dismissed in default on 20th July, 2001.
2. The brief facts of the case, as has been noted by the learned Additional District Judge, are as under :
“Brief facts necessary for disposal of the present application are that the petition u/s 13(1)(i-a) of the Hindu Marriage Act had been filed by the applicant/husband against the respondent/wife, for dissolution of his marriage, which was pending for 20.7.2001 for arguments on the application u/o 6 Rule 16 CPC, n which the petitioner/applicant did not put in appearance and the petition had been dismissed in default at 3.55 P.M.
3. The present application has been filed for seeking restoration of the petition and setting aside of the order dated 20.7.2001 on the ground that on 18.7.2001 the petitioner had met with an accident and remained under the treatment of Dr.Gupta at Ashok Vihar. That he was confined to bed with effect from 18.7.2001 to 25.7.2001 and was unable to attend the Court. That during this period, he tried to contact his counsel Ashwani Kumar, Advocate but he too was suffering from some ailment and was confined to bed being under treatment at Sir Ganga Ram Hospital. That since his counsel has now been cured to some extent, therefore the present application has been filed after inspection of the court record on 30.8.2001. It is submitted that the absence of the petitioner and his counsel on 20.7.2001 was neither intentional nor mala fide but due to reason beyond his control.
4. The application was moved on 31.8.2001 Along with an affidavit of the petitioner.
5. The said application has been contested by the respondent, who has filed reply wherein preliminary objection has been taken that the application is time barred. Further that since the petitioner himself has mentioned in the application that he was recovered on 25.7.2001 so he had ample opportunities before 30.8.2001 to inspect the file and to move the application for restoration within time. It is submitted that there is no merit in the application, therefore the same should be dismissed with cost.”
3. It is contended by counsel for the appellant that the petition was dismissed on account of the defaults committed by the counsel engaged by the appellant and there was no negligence on his part whatsoever. He submits that in the event the petition is restored, no one will suffer any prejudice much less of irreparable nature. He refers to the judgments of the Supreme Court in Lajpat Rai & Ors. Vs. State of Punjab & Ors. and Devender Swamy Vs. Karnataka State Road Transport Corporation , wherein the Supreme Court has held that for the default of counsel, the party must not suffer.
4. Counsel for the respondent submits that the Supreme Court in Ragho Singh Vs. Mohan Singh & Ors. has held that where an application for condensation of delay has not been filed, then though the default is of counsel, the delay should not be condoned.
5. Heard counsel for the parties and have gone through the judgments of the Supreme Court. It appears to me that in the present case counsel for the appellant was not negligent in pursuing the matter and has also filed an affidavit to the effect that he has been bed-ridden and suffering from paralysis and therefore, could not pursue the matter diligently.
6. Taking into account the totality of the matter and considering that the parties have been at issue about the marital status, it would be proper and in the interest of justice that the petition be decided on merits. In that view of the matter, I set aside the order dated 14th February, 2002 and restore the petition to its original file and number and direct the Additional District Judge to dispose of the matter in accordance with law.
7. FAO 154/2002 is accordingly allowed and disposed of. No orders as to costs.