Punjab-Haryana High Court
Bisamber Dayal vs Muralidhar & Others on 10 July, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL REVISION NO.2516 OF 2011
DATE OF DECISION : 10th JULY, 2012
Bisamber Dayal
.... Petitioner
Versus
Muralidhar & others
.... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Munish Gupta, Advocate for the petitioner.
Mr. Sanjay Mittal, Advocate for the respondents.
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L. N. MITTAL, J. (ORAL)
Defendant No.1-Bisamber Dayal has approached this Court by way of instant revision petition under Article 227 of the Constitution of India, impugning order dated 21.01.2011 Annexure P-6 passed by learned Additional District Judge, Fast Track Court, Narnaul.
Suit filed by plaintiff-Smt. Keshari (since deceased and represented by Murlidhar respondent No.1 herein as her legal representative) was dismissed in default on 29.09.2000 when none appeared for the plaintiff. Respondent No.1 filed application Annexure P-1 for restoration of the suit alleging that he had gone to Ahemdabad in connection with business and fell ill there and, therefore, he could not appear in the suit on the date fixed and his counsel also could not appear being busy in another Court. It was alleged that respondent No.1 returned from Ahemdabad on 31.10.2000 and then on enquiry learnt of the dismissal of the suit in default.
CR No.2516 of 2011-2-
Defendant No.1 by filing reply Annexure P-2 resisted the application and controverted the averments made in the restoration application.
Learned Additional Civil Judge (Senior Division), Narnail vide order dated 11.05.2009 Annexure P-4 dismissed the restoration application. However, appeal against the said order preferred by respondent No.1 herein has been allowed by learned Additional District Judge (Fast Track Court), Narnaul vide impugned Annexure P-6 and thereby suit has been restored to its original number and stage, subject to payment of `2000/- as costs. Feeling aggrieved, defendant No.1 has filed this revision petition.
I have heard learned counsel for the parties and perused the case file.
Counsel for the petitioner contended that restoration application was barred by limitation having been filed 14 days after expiry of limitation period of 30 days for filing the restoration application but no application for condonation of the said delay was moved and, therefore, the restoration application could not be allowed. It was contended that limitation period for filing the restoration application commenced on the date of dismissal of the suit and not on the date of knowledge of respondent No.1-plaintiff. Reliance in support of this contention has been placed on judgment of this Court in case of Smt. Dev Bala Sehgal versus Devionder Pal Sehgal reported as 2001(4) RCR (Civil) 757.
On the other hand, counsel for respondent No.1 contended that averments made in the restoration application are also sufficient to condone the delay of 14 days in filing the restoration application and, therefore, the restoration application could not be dismissed merely because formal application for condonation of the said delay was not filed. Reliance in support CR No.2516 of 2011 -3- of this contention has been placed on various judgments namely Karam Pal versus Ramesh Jain, 2009(2) RCR (Civil) 613 of this Court; Canara Bank versus Prem Bhusan Dewan, 1992(2) RRR 444; Universal Builders and Contractors versus Sheila Singh Uppal & others, 2009 (3) CivCC 178 of Delhi High Court; Munishwari Devi versus Jitan Singh, 1993(2) LJR 674 of Allahabad High Court and The Bihar State Electricity Board, Patna versus Pawan Kumar Khetan and others, 1978 AIR (Patna) 253 of Patna High Court.
I have carefully considered the rival contentions. In view of Article 122 of the Schedule to the Limitation Act, limitation period of 30 days to file the restoration application commences from the date of dismissal. Contention of counsel for appellant in this regard based on judgment in the case of Smt. Dev Bala Sehgal (supra), therefore, has merit. However, small delay of 14 days in filing the restoration application could be condoned on payment of costs as ground for the same was pleaded in the restoration application itself. Mere absence of separate formal application for condonation of said delay is not sufficient to dismiss the restoration application as held in various judgments cited by counsel for respondent No.1 as noticed hereinbefore. In these circumstances, lower Appellate Court has rightly exercised the discretion by allowing the restoration application on payment of costs. The said discretion cannot be said to be illegal or perverse in any manner so as to call for interference in exercise of revisional jurisdiction. On the other hand, Courts lean in favour of deciding the lis on merits instead of by default. In the instant case, no injustice has occasioned to the appellant and there has been no miscarriage of justice by the impugned order. On the other hand, justice has been done by the lower Appellate Court by restoring the suit CR No.2516 of 2011 -4- on payment of costs. The impugned order does not suffer from any jurisdictional error. In these circumstances, this court would not interfere with the impugned order in exercise of power of superintendence under Article 227 of the Constitution of India.
For the reasons aforesaid, I find no merit in this revision petition, which is, therefore, dismissed.
10th July, 2012 (L. N. MITTAL)
'raj' JUDGE