Civil Revision No.5298 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5298 of 2008
Date of decision: 4.2.2009
Dharampal and another ...Petitioners
Versus
Balwant Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. Rajinder Goyal, Advocate for the petitioners.
Mr. Arun Jain, Senior Advocate with
Mr. Ajay Kaushik, Advocate for the respondents.
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S.D.ANAND, J.
The facts beyond the pale of controversy are as under:-
A civil suit filed by the petitioners before the Trial Court was
partly decreed by the then learned Senior Sub Judge, Kaithal, vide
judgment and decree dated 30.8.1994.
In first appeal, the plaintiffs-petitioners tasted success in toto
in terms of judgment and decree dated 13.1.1999, passed by the then
learned Additional District Judge, Kaithal.
In Regular Second Appeal (No.1038 of 1999), this Court set
aside the judgments and decree recorded by the learned Trial Court and
First Appellate Court and remanded the case to the Trial court for disposal
of a plea under Order 6 Rule 17 C.P.C. which the plaintiffs were inclined to
file before it. The parties, through their learned counsel, were directed to
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appear before the learned Trial Court on 3.9.1999.
None appeared on behalf of the parties before the learned
Trial Court on that date. It was only on 1.9.2001 that the plaintiffs-
petitioners filed a plea before the learned Trial Court for taking up the
relevant file for proceeding further in the matter in terms of order dated
11.8.1999 passed by this Court in R.S.A. No.1038 of 1999. The plea,
urged in support thereof, was that the plaintiffs-petitioners could not appear
in the Court on the date fixed by this Court because the original trial court
file had not reached the office of the Trial Court and had instead been
directly sent (by the Registry of this Court) to the Record Room.
The defendants-respondents resisted the plea by averring that
the suit should be deemed to have been dismissed on 3.9.1999 itself. In
the context, the premise averred by the plaintiffs-petitioners to explain their
absence was contested by the defendants-respondents who pleaded that
the Trial Court record had not at all been received by the Registry of this
Court and there was, thus, no question of the records having been sent by
the Registry of this court to the Record Room directly. On that premise, the
application filed by the plaintiffs-petitioners was averred to be time barred.
The learned Trial Court upheld the plea raised on behalf of the
defendants-respondents and held that on account of non-appearance of
the plaintiffs-petitioners before the Trial Court on 3.9.1999 “their suit shall
be deemed to be dismissed on 3.9.1999 and the suit cannot be treated to
be continued for an indefinite time.”
The learned counsel for the plaintiffs-petitioners argues that
the theory of deemed dismissal is invalid in the circumstances of the case
when neither side appeared before the learned Trial Court on 3.9.1999.
The learned Senior Counsel, appearing on behalf of the defendants-
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respondents, argues that only course presently open before the plaintiffs-
petitioners is to ask for extension of time from this Court for appearing
before the learned Trial Court. It is argued that the order on point of
deemed dismissal is perfectly valid.
The correctness or otherwise of the contradictory stances
taken up by the parties with regard to receipt of otherwise of the trial court
record by the Record Room notwithstanding, it is apparent that case had
not been taken up by the Trial Court on 3.9.1999. Whether the Trial Court
record had been initially despatched to the Registry of this Court or not or
whether the record had been directly sent by the Registry of this Court to
the Record Room or not, it was incumbent upon the learned Trial Court to
take up the matter on 3.9.1999 and to pass whatever order, it deemed
appropriate in the absence of the parties to the cause. Concededly, the
Trial Court did not take up the file on 3.9.1999.
In the circumstances of the case, I would discard the theory of
deemed dismissal of the suit. In the peculiar facts and circumstances of
the case, the petition shall stand allowed. The impugned order dated
13.6.2008 shall stand set aside. The matter shall be listed before the
learned Trial Court on 20.2.2009. On that date itself, the plea under Order
6 Rule 17 C.P.C. shall be presented by the plaintiffs-petitioners which
(plea) shall be disposed of by the learned Trial Court within one month from
thereof. The defendants-respondents shall, ofcourse, be afforded an
opportunity to file a counter thereto in the meantime.
February 04, 2009 (S.D.Anand) Pka Judge