Krishan Kumar vs Kavita

Paramjeet Singh, J.—Present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 26.07.2012 (Annexure P/1) passed by learned Additional District Judge, Panchkula, whereby application under Order 9 Rule 9 of the CPC moved by the respondent for restoration of application u/s 25(ii) of the Hindu Marriage Act has been allowed. Learned counsel for the petitioner vehemently contended that there is 30 days limitation period for restoring an application which is to be reckoned from the date of dismissal of application, Section 122 of the Limitation Act applies. In the present case, provision of law has not been followed and the restoration has been ordered. Learned counsel for the petitioner relied upon judgments of this Court in Mool Chand Yadav @ Ashok v. Phool Singh and another, 2010(5) R.C.R. (Civil) 8 and Dev Bala Sehgal Vs. Devinder Pal Sehgal .

The contention of the learned counsel for the petitioner has been vehemently opposed by the learned counsel for the respondent. It is contended that counsel for the respondent Sh. G.L. Nagpal fell seriously ill. He could not attend the Court, as a result of which, application u/s 25(ii) of the Hindu Marriage Act was dismissed in default on 01.03.2011. The non-appearance of the respondent as well as her counsel was neither intentional nor deliberate. Due to the illness of the counsel for the respondent, no-one could appear on the date fixed as a result of which application was dismissed in default. Immediately when the respondent came to know of the dismissal, application for restoration was moved which has been rightly allowed by the learned Trial Court on 26.07.2012. The relevant part of the order is as under:-

I have carefully perused the case file. Vide order dated 24.02.2011, the learned District Judge, Panchkula, had transferred the application u/s 25(H) of the Hindu Marriage Act filed by the applicant in the Court of Mrs. Ritu Garg, the then learned Additional District Judge, Panchkula, to this court. On 01.03.2011 the case was received in this court and on the said date due to non-appearance of the applicant, her application u/s 25(ii) of the Hindu Marriage Act was dismissed in default. As mentioned earlier, the application has cited serious illness as a reason for non appearance of her counsel Sh. G.L. Nagpal. Also, in support of the averments made in the application for restoration of the petition, the applicant has furnished her affidavit. In the authority "S.S. Builders v. Sita Rani Ahuja" (supra), relied upon by the learned counsel for the applicant, the Hon'ble Delhi High Court while disposing of the application for restoration of suit filed after a delay of 355 has held that each day's delay individually is not to be explained by applicant if by regarding the explanation given by him as a whole makes out sufficient cause which prevented him from attending the hearing of a case when the suit was dismissed in default by the Court. In the authority "Sunder Kukreja and others v. Mohan Lal Kukreja and others" (supra), relied upon by the learned counsel for the applicant the Hon'ble Delhi High Court while setting aside the order of dismiss in default of the suit has held that in view of the application supported by the affidavit of the counsel showing sufficient cause and reason for non-appearance, the petitioner cannot be allowed to suffer for latches or lapses even if there be any on the part of the lawyer. As discussed above the reason given by the applicant-petitioner qua her as well as her counsel's non-appearance on the date fixed appears to be genuine and further, the fact that on the said date the case had been received by transfer by this Court cannot be overlooked.

I have considered the rival contentions of the learned counsel for the parties and perused the impugned order.

The judgments cited by the learned counsel for the petitioner are not applicable in the peculiar facts and circumstances of this case. Specifically it is common that when the counsel is appearing, the client does not appear on every date. Here is a case, the counsel for the respondent fell ill and could not appear and subsequently when the respondent came to know about the fact, application for restoration of application u/s 25(ii) of the Hindu Marriage Act was moved. The rule of procedure are hand made of justice and shall not be used as technical ground for defeating the ends of justice. In view of this, I do not find any illegality and perversity in the impugned order, specifically when the averments made in the application are supported by an affidavit. The respondent cannot be allowed to suffer for the latches and lapses which have occurred on account of illness of the counsel for the respondent.

Dismissed.