J & K Tourism Development Corporation vs Daljit Singh Azad

The petitioner corporation challenges the order dated 931993 passed by the Learned Sub Registrar (Munsiff), Jammu, restoring the suit of the

respondent to its original number. The order is attached on the ground that the trial court had allowed the respondent's application after delay of

more than one year and it also failed to appreciate that ""dead suit"" could not be restored.

Record reveals that the respondent filed a civil suit which was pending adjudication before the 1st Addl. Munsiff, Srinagar. He had engaged one

Shri L.K. Jalali, advocate, to pursue the suit.. The suit was dismissed in default of appearance of the plaintiff on 3041991. Be that as it may, the

respondent Claims that he learnt about the migration of his advocate Shri Jalali to Jammu in Sept., 1S91 and filed Civil Transfer Application No.

84/91 before this court which was allowed by order dated 1151992 with consent of learned counsel for the parties. Shri B.S. Bali advocate

appeared for the petitionerdefendantcorporation. He further seems to have asserted that after the suit was transferred to the court of Sub Registrar

(Munsiff) Jammu, he came 10 know on 2551992 that the suit had been dismissed in default on 3041991 He accordingly filed an application

praying for its restoration on the ground that he had not known about the dismissal of the suit till 2551992 and that he had a sufficient cause not to

seek its restoration between April 30,1991 and May 26,1992.

Mr. Johal, learned counsel for the petitioner contended that on the date the respondent (plaintiff) filed civil transfer application No. 24 of 1991 in

this Court, his suit already stood dismissed. As such no suit could be transferred to the court of Sub Registrar (Munsiff), Jammu, nor could the

transferee court take any step to consider its restoration or restore it because he had no competence to restore a dead suit. He also submitted that

the court below had allowed the respondents application though he had made no application seeking condonation of delay in filing the same and

not to speak of any plausible explanation for delay. He relied upon AIR 1986 J&K 86, to show that the limitation provided for restore the suit

under Art. 163 of the Limitation Act, is only 30 days from the date of dismissal which does not include ""the date of knowledge"".

Mr. Goja , learned counsel for the respondent has, however, refuted that the respondent had failed to make any application seeking condonation

of delay. He submitted that the very fact that the petitioner had moved Civil Transfer application No. 84/91 in this Court in September, 199], by

itself showed that he was unaware of the dismissal of the suit on 3041993. He asserted that he came to know about the dismissal only on 2551992

where after he made an application seeking restoration of the &uit. I have heard learned counsel for the parties.

The first contention raised by Mr. Johal is misdirected. It is a matter of record that the suit was transferred by this Court to the file of Sub Registrar

(Munsiff), Jammu, by order dated 1151992 with the consent of learned counsel for the parties, ft may be true that the suit was dismissed in default

on the date it was ordered to be transferred, but it was for the counsel for the petitionerdefendant to bring this fact to the notice of the High Court.

On the contrary, he consented to its transfer. The High Court could not have acquired knowledge about its dismissal on its own unless it was

brought to its notice by the parties. Moreover, if this Court had wrongly transferred the suit, it was this court alone which could have rectified the

error"". The transferee court could not have interpreted its order because the same would amount to sitting in appeal by a subordinate court over

the orders of the High Court. Therefore, the transferee court had no option but to take the suit on its file and proceed with it in accordance with

law. It can not be said that the transferee court lost jurisdiction merely because of a dismissed suit having wrongly been transferred to its file. As

such If the record of the suit was received by the transferee court for further adjudication, it could not have taken its hands off and refused to

proceed with it.

It does not need any reiteration that an error committed by a civil court can be got rectified by the same court in review proceedings or by a higher

forum wherever the law provides so. As error cannot be set right by any other court, more so by a subordinate court. Given regard to this it is not

understandable why the petitioner failed to seek rectification of ""any error"" in the order dated 1151985 before the High Court and expected the

trial court to do so. Therefore, I have no doubt in my mind that the trial court has rightly proceeded in the matter and had no option but to receive

the record of the suit and proceed with it.

On merits also I find that the transferee court has not committed any illegality or irregularity. It is not controverted that the respondent's counsel Mr.

Jalali, had migranted from Kashmir valley due to disturbances there. It is also evident that the respondent moved this Court for transfer of the suit in

September, 1991. There is hardly any reason to doubt that be was unaware of the dismissal of the suit till he Claims it became known to him on

2551992. In the circumstances it cannot be said that the trial court has allowed his application for restoration of the suit on flimsy grounds or

without any cause. I have examined the order impugned and find it a reasoned order requiring no interference by this Court. Mr. Johal's reliance on

AIR 1986 J&K 86, is grossly misplaced as the judgment is distinguishable on facts and law.

For the reasons given above I find no merit in this petition which is dismissed alongwith C.M.P. No 299/93.