Punjab-Haryana High Court
Ram Chander And Another vs State Of Haryana And Others on 11 September, 2024
Neutral Citation No:=2024:PHHC:120264
CWP-23095-2024 -1-
118
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP-23095-2024
Date of Decision: 11.09.2024
Ram Chander and another ....Petitioners
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HARSH BUNGER
Present : Mr. Rajbir Singh, Advocate for
Mr. Abhimanyu Singh, Advocate
for the petitioners.
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HARSH BUNGER, J. (Oral)
The present petition has been filed under Articles 226/227 of the Constitution of India inter alia seeking a writ in the nature of Certiorari for setting aside the order dated 14.08.2024 (Annexure P-7), passed by learned Financial Commissioner, Haryana (respondent No.2), whereby an application submitted by the petitioners seeking restoration of his earlier application bearing CM No.157 of 2024 praying for restoration of the main case (ROR No.379 of 2019-20) which was dismissed in default; has been dismissed.
2. Briefly, the petitioners filed a Revision Petition (ROR No.379 of 2019-20), which was dismissed in default vide order dated 05.06.2024 (Annexure P-3). It is averred that the petitioners filed an application 1 of 5 ::: Downloaded on - 22-09-2024 20:58:35 ::: Neutral Citation No:=2024:PHHC:120264 CWP-23095-2024 -2- (CM No.157 of 2024) seeking restoration of the main case (ROR No.379 of 2019-20), however the said application was also dismissed in default vide order dated 11.07.2024.
2.1 It transpires that the petitioners again filed another application bearing CM No.175 of 2024 in ROR No.379 of 2019-20 seeking restoration of his earlier application (CM No.157 of 2024), which was filed for restoration of the revision petition (ROR No.379 of 2019-20). 2.2 The second application bearing CM No.175 of 2024 has been dismissed by learned Financial Commissioner, Haryana vide order dated 14.08.2024 (Annexure P-7).
3. Learned counsel for the petitioners submits that the learned Financial Commissioner, Haryana has dismissed the application bearing CM No.175 of 2024 vide order dated 14.08.2024 (Annexure P-7) only on the account that the petitioners could not produce the relevant case law in support of his submission that a second application seeking restoration of the application which was filed earlier for restoration of the main case (ROR No.379 of 2019-20) and was dismissed in default, was maintainable in law.
3.1 It is submitted by learned counsel for the petitioners that the petitioners had requested for a short accommodation to produce the said case law in support of his submission, however, the said request was not considered by the concerned Officer and they proceeded to dismiss the second application. Learned counsel for the petitioners undertakes that the petitioners would be represented by their counsel on each and every date of hearing as fixed by learned Financial Commissioner, Haryana.
4. Notice of motion.
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5. Ms. Upasana Dhawan, AAG, Haryana, who is present in the Court, accepts notice on behalf of the respondent/State, submits that the petitioners had been afforded many opportunities to argue the revision petition, however, since the matter was being unnecessarily adjourned and on the date fixed i.e. 05.06.2024, since there was no representation on behalf of the petitioners, accordingly, the revision petition (ROR No.379 of 2019-20) was dismissed in default and even the application (CM No.157 of 2024) submitted by the petitioners seeking restoration of the revision petition was also dismissed in default as there was no representation on their behalf.
6. I have heard learned counsel for the parties and perused the paper book with their able assistance.
7. As regards the order dated 14.08.2024 (Annexure P-7) is concerned, apparently the application bearing CM No.175 of 2024 seeking restoration of earlier application (CM No.157 of 2024) filed by the petitioners for restoration of the revision petition (ROR No.379 of 2019-20) has been dismissed on the ground that the counsel for the petitioners could not produce the relevant case law in support of their submission that a second restoration application was maintainable. 7.1 In fact, there is no dispute as regards the maintainability of the second restoration application, which is clearly spelt out in a Division Bench judgment of this Court in the case of "Bhajan Singh vs. Ganeshi Devi", 1978 AIR Punjab and Haryana 257, wherein the following observation was made:
"2. The matter in issue is not res integra. In Abdul Rahman Shah and others v. Shahana, AIR 1970 Lahore 304, Petman, J., expressed the opinion that an application under Rule 9 of 3 of 5 ::: Downloaded on - 22-09-2024 20:58:36 ::: Neutral Citation No:=2024:PHHC:120264 CWP-23095-2024 -4- Order 9 of the Civil Procedure Code was competent if it sought the restoration of an earlier application seeking restoration of the suit in the event that the suit and the said previous application had both been dismissed for default. Reliance was placed by Petman, J., on the provisions of section 141 of the Code. That section stood thus when the impugned order was made :
"The procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction."
The provisions of the section are very wide in there amplitude and there is no reason why any restricted meaning should be attached to them in the absence of any indication to that effect in the language employed. An application under Order 9, Rule 9 of the Code is certainly a proceeding in a Court of civil jurisdiction and, therefore, the procedure provided in the Code in regard to suits has to be followed in respect thereof. In other words, if an application of that type is dismissed for default, the procedure available to the aggrieved party would be the same as is open to a plaintiff when his suit is dismissed for default. This was also the opinion expressed by a Full Bench in Nathu Prasad v. Singhai Kapurchand, AIR 1976 Madhya Pradesh
136.
3. We might add that the view that an application is competent for restoration of a previous one dismissed for default when such previous one seeks a restoration of the suit which was itself dismissed for default was also expressed in Lok Nath and others v. Mst. Satan Bai, AIR 1923 Lahore 302(2), Ganesh Prasad v. Bhagelu Ram, AIR 1925 Allahabad 773 and Nand Lal v. Jetha Ram, AIR 1929 Lahore 878, none of which however, refers to the provisions of section 141 of the Code; while no decision to the contrary has been cited before us."
8. Be that as it may, the learned Financial Commissioner, Haryana could have allowed the said application on certain terms may be by 4 of 5 ::: Downloaded on - 22-09-2024 20:58:36 ::: Neutral Citation No:=2024:PHHC:120264 CWP-23095-2024 -5- imposition of costs, however, no such course has been adopted. It is well settled that the matter should be decided on merits rather than on technicalities.
8.1 In view of the above, order dated 14.08.2024 (Annexure P-7) is set aside and the Writ Petition is accordingly partly allowed. The application bearing CM No.175 of 2024 stands allowed and as a consequence thereof, the earlier application bearing CM No.157 of 2024 is ordered to be restored on the board of learned Financial Commissioner, Haryana, who shall decide the same after giving due opportunity of hearing to the petitioners.
9. The instant Writ Petition is disposed of, accordingly.
10. All pending application(s), if any, shall also stand closed.
11.09.2024 (HARSH BUNGER)
Pd JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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