Atma Ram and Others vs Molu Ram and Others

M.S. Liberhan, J.—The short point in this petition is that a suit for permanent injunction was fixed for plaintiff''s evidence eon May 13,1986, when it was dismissed in default. On May, 15, 1986 restoration of the suit was sought on the grounds that the counsel for the plaintiffs was under a wrong impression, that the case was adjourned to May 23, 1986, the absence was not intentional and there was sufficient cause for the restoration of the suit.

The courts below declined to restore the suitinter alia holding that the plaintiffs had failed to disclose how they had come to know on May 15, 1986 that the suit was dismissed in default.

The reason itself appears to be perverse. For restoration of a suit, what the Court is expected to see is whether there was a sufficient cause for absence. The manner of acquiring the knowledge that the suit had been dismissed in default, is not a relevant consideration at all. The object of the Courts is not to tap the litigants in hyper-technicalities but to do justice. Nothing has been stated that the plaintiffs were in any way interested in getting the suit dismissed in default. No mala fides have been attributed to the plaintiffs in this regard. The counsel who has taken the responsibility on himself for being under a wrong impression, did sign the application and he himself conducted the case before the Courts below.

In these peculiar facts and circumstances, I find that there was sufficient cause for absence and this is a ground for restoration of the suit. In the view I have taken, I am fortified by the observations in Shrimati Hukmi Bai v. Rattan Chand and others, 1987 PLJ 350, wherein it has been observed that the trial Court should not even frame issues for recording evidence. The affidavit itself would be deemed to be sufficient, for restoration of the suit. Similar are the observations in Firm Lajja Ram Garg and Sons v. Firm Maya Ram Hem Dass and others, 1981 PLJ 565 and United Church of Northern India Ludhiana v. Darshan Singh Anand and another (1988 1) PLR 321. Even if there was some negligence on the part of the plaintiff, the defendants would have been well compensated with costs. Cost is a panacea for the negligence.

In view of the peculiar facts and circumstances of the case, and the observation made above, this Revision Petition is allowed with costs.

The suit is restored and the parties are directed to appear before the trial Court on June 2, 1990.