Punjab-Haryana High Court
Brijeshwar Singh vs Haryana Urban Development Authority on 5 September, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 5166 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 5166 of 2012 (O&M)
Date of Decision : September 05, 2012
Brijeshwar Singh .... Petitioner
Vs.
Haryana Urban development Authority .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Sanjeev Sharma, Senior Advocate
with Mr. Vikram Vir Sharda, Advocate
for the petitioner.
* * *
L. N. MITTAL, J. (Oral) :
C. M. No. 22084-C-II of 2012 :
Allowed as prayed for. Main Case :
Plaintiff Brijeshwar Singh has filed this revision petition under Article 227 of the Constitution of India.
Suit filed by plaintiff-petitioner against defendant-respondent was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure (in short - CPC), vide order dated 14.03.2007 (Annexure P-5) C. R. No. 5166 of 2012 (O&M) 2 passed by the trial court because none appeared for the plaintiff.
Plaintiff moved application on 02.11.2007 for restoration of the suit alleging that his counsel Mr. Suresh Sharma, Advocate had died on 18.04.2007 reportedly on account of Brain Tumour and prior to his death, he was under treatment for many months. Plaintiff was aware of ailment of the counsel, but did not know about his death. The counsel had assured the plaintiff that he would be informed as and when required. The plaintiff learnt on 25.10.2007 about dismissal of the suit in default on visiting the chamber of the counsel. Hence the restoration application.
Defendant-respondent opposed the restoration application. Averments made in the application were controverted except that Mr. Suresh Sharma, Advocate had died on 18.04.2007.
Learned trial court, vide order dated 22.11.2010 (Annexure P-
10), dismissed the plaintiff's restoration application. Appeal against the said order, preferred by the plaintiff, has been dismissed by learned Additional District Judge, Faridabad, vide order dated 21.07.2012 (Annexure P-12). In the instant revision petition, the aforesaid orders Annexures P-5 and P-10 of the trial court and order Annexure P-12 of the lower appellate court are under challenge.
I have heard learned senior counsel for the petitioner and perused the case file.
C. R. No. 5166 of 2012 (O&M) 3
Counsel for the petitioner contended that the petitioner-plaintiff was not aware of the death of his counsel Mr. Suresh Sharma, Advocate, and therefore, he could not learn of the dismissal of the suit earlier. It was also contended that Mr. Gaurav Sharma, Advocate, who is son of Mr. Suresh Sharma, Advocate started appearing for the plaintiff without any Vakalatnama. Counsel for the petitioner has also cited judgment of this Court in the case of State of Punjab vs. Harjit Singh reported as 2007 (5) R. C. R. (Civil) 454 and judgment of Andhra Pradesh High Court namely Dena Bank vs. M/s Industrial Limes and others reported as 1994 (1) LJR 372.
I have carefully considered the aforesaid contentions, but the same cannot be accepted.
The suit was dismissed in default vide order dated 14.03.2007, while Mr. Suresh Sharma, Advocate representing the plaintiff was still alive. Consequently, subsequent death of Mr. Suresh Sharma, Advocate on 18.04.2007 has no bearing on the merits of the restoration application. The plaintiff has himself stated that he was aware of the ailment of Mr. Suresh Sharma, Advocate prior to his death. Perusal of impugned order Annexure P-10 of the trial court also reveals that in appeal in the matter of temporary injunction, Mr. Gaurav Sharma, Advocate appeared for the plaintiff and after decision of the said appeal, Mr. Gaurav Sharma, Advocate had been C. R. No. 5166 of 2012 (O&M) 4 appearing for the plaintiff since 11.11.2005 till 12.02.2007 (next preceding date before dismissal of the suit) in the trial court. Thus, it is apparent that illness or death of Mr. Suresh Sharma, Advocate has no bearing on the restoration application and the same has been invoked by the plaintiff unnecessarily. Plaintiff should not have done so.
Perusal of the impugned order Annexure P-10 also reveals that it was last opportunity for the plaintiff to conclude his evidence on 14.03.2007. It is thus manifest that plaintiff did not appear intentionally in the trial court on the said date.
The restoration application moved by the plaintiff is also barred by limitation. The suit was dismissed in default on 14.03.2007 whereas the restoration application was filed on 02.11.2007. Thus, the restoration application was also barred by limitation.
Judgments in the cases of Harjit Singh and Dena Bank (supra) have no applicability to the facts of the instant case because in the instant case, the whole conduct of the plaintiff-petitioner is mala fide. He has played hide and seek with the Court. Consequently, he cannot invoke equity or discretionary jurisdiction in his favour. On the contrary, the entire exercise from the filing of restoration application to first appeal and instant revision petition is gross and malicious abuse of process of the Court, which has to be curbed by imposing exemplary costs on the plaintiff. C. R. No. 5166 of 2012 (O&M) 5
For the reasons aforesaid, I find no merit in the instant revision petition, which is not only meritless, but is also frivolous. Impugned orders of the courts below do not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. Accordingly, the revision petition is dismissed with costs of Rs.10,000/-, to be deposited with the Registry of this Court within one month from today, failing which the case shall be listed for this purpose.
September 05, 2012 ( L. N. MITTAL ) monika JUDGE