JUDGMENT
Sunil Kumar Garg, J.
1. This revision petition has been filed by the petitioner – plaintiff against the judgment dtd. 27.1.2004 passed by the learned Additional Dist. Judge, Parbatsar in Civil Appeal No. 1/2003 whereby he dismissed the appeal filed by the petitioner – plaintiff and affirmed the order dtd. 10.1.2003 passed by the learned Civil Judge (J.D.), Makrana in Civil Case No. 101/2000 whereby the learned Civil Judge dismissed the application under Order 9 Rule 4 C.P.C. filed by the petitioner – plaintiff for restoration of the suit.
2. It arises in the following circumstances:
i) That the petitioner – plaintiff filed a suit against the respondents -defendants for permanent injunction and in that suit, the date was fixed as 29.5.2002 for filing written statement on behalf of the defendants – respondents, but on that date, i.e. on 29.5.2002, since nobody appeared on behalf of the petitioner – plaintiff including his counsel, the suit was dismissed in default for non-prosecution.
ii) That thereafter on 4.7.2002, the petitioner – plaintiff filed an application under Order 9 Rule 4 C.P.C. for restoration of the suit mentioning the reasons for default.
iii) That no reply was filed by the respondents – defendants to the application filed by the petitioner – plaintiff. However, after hearing both the parties, the learned Civil Judge (J.D.) through order dtd. 10.1.2003 after placing reliance of Article 122 of the Indian Limitation Act, 1963 dismissed the application filed by the petitioner plaintiff inter alia holding that since after 29.5.2002 there were summer vacations, therefore, on opening day i.e. on 1.7.2002, the application for restoration of the suit should have been filed and since it was filed on 4.7.2002, therefore, according to him it was time barred by three days.
iv) That aggrieved from the order dtd. 10.1.2003, the petitioner -plaintiff filed an appeal before the learned Additional Dist. Judge, Parbatsar and the learned Additional Dist. Judge, Parbatsar also dismissed the appeal filed by the petitioner – plaintiff through judgment dtd. 27.1.2004 and affirmed the order dtd. 10.1.2003 passed by the learned Civil Judge. Hence, this revision petition.
3. In this revision petition, it has been submitted by the learned counsel for the petitioner – plaintiff that even if it is presumed that the application was time barred by 3 days, it should have been allowed so that justice may be done between the parties.
4. On the other hand, the learned counsel for the respondents – defendant has submitted that the order passed by the learned Civil Judge and judgment passed by the learned lower Appellate Court are based on proper appreciation of facts and law and same do not warrant any interfere by this court and hence, the present revision petition be dismissed.
5. Heard.
6. In my considered opinion, this revision petition deserves to be allowed on the following reasons:
i) That on 29.5.2002 when the case was fixed, nothing was to be done by the plaintiff – petitioner as the case was fixed for filing written statement and that was to be filed by the respondents – defendants. In such a situation, even if for the default, the learned Trial Court should not have dismissed the suit for non-prosecution and under such circumstances, it cannot be said that there was default in strict sense for non- prosecution on the part of the plaintiff – petitioner.
ii) That even in such a case, if this court finds proper, the High Court has power to restore the suit under inherent powers. Since In this case, if the law of limitation was applicable, since there was delay of only three days and since nothing was to be done by the plaintiff -petitioner on 29.5.2002, it is a fit case, where inherent powers can be exercised by this Court to secure ends of justice and to prevent abuse of process of the Court.
iii) It may be stated here that basic object of the procedural law is to shorten litigation and grant expedient justice; its object is to grant final justice and not to weave spider web to entangle for immemorial time, the parties into litigation for occasioning proverbial delays. Procedural law is not a tool to refuse a just relief for a mere infraction of a rule of procedure which does not in any manner cause prejudice to the complaining party; it cannot be allowed to occasion injustice or go against good conscience; legal niceties cannot be permitted to hang the sword of uncertainty on the litigants’ rights.
iv) The Code of Civil Procedure not being exhaustive, should be construed liberally and as far as possible merely technical objections should not be allowed to defeat substantial justice.
7. For the reasons mentioned above, the present revision petition deserves to be allowed and judgment dtd. 27.1.2004 passed by the learned Additional Dist. Judge and order dtd. 10.1.2003 passed by the learned Civil Judge suffer from basic infirmity and illegality and deserve to be quashed and set aside.
Accordingly, the present revision petition is allowed and the judgment dtd. 27.1.2004 passed by the Additional Dist. Judge, Parbatsar in Civil Appeal No. 1/2003 and order dtd. 10.1.2003 passed by the learned Civil Judge (J.D.), Makrana are quashed and set aside and the application filed by the plaintiff – petitioner under Order 9 Rule 4 C.P.C. is allowed and the suit filed by the petitioner – plaintiff is restored to its original number and the parties are directed to appear before the learned Civil Judge (J.D.), Makrana on 4.10.2004 and on that date, the defendants – respondents shall file written statement.