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Judgment
The petitioners, who are defendants in a suit for declaration and recovery of possession, have preferred this writ petition against the second order
passed by the Trial Court on 21.02.2018, whereby the Trial Court has restored the civil suit for further proceedings while recalling its first order
passed in the morning session.
The Trial Court restored the suit on the very date of dismissal with the short order, which reads as under;
“Plaintiff and Plaintiff counsel present and filed advancement and restoration application u/s 151 of CPC. Defendant counsel absent. Heard for the
reasons stated in the both applications order for the dismissal of suit for non prosecution made in the morning session is recalled on cost of Rs.5,000/-.
Plaintiff counsel submits no further chief. Intimate restoration of suit to the defendant counsel by RPAD paid by the plaintiff and next stage of the
case.
For cross of PW-1 by 28.03.2018.â€
Learned counsel for the petitioners submits that the order aforesaid was passed without notice to the petitioners.
Though it appears that the order impugned was passed without notice to the counsel for the defendants but thereby, the suit dismissed for default in
the morning session was restored that very day and that too on the costs of Rs.5,000/-.
This Court is clearly of the view that every procedural shortcoming does not invest any party to the litigation with any vested right, particularly, in the
matters of default dismissal. It remains trite that the matters are preferred to be decided on merits rather than on technicalities. In the suit of the
present nature involving immovable property and substantial rights of the parties, it is always preferred that the matter is decided on merits.
In the given set of facts and circumstances, even if it be taken that the procedure adopted by the Trial Court discloses an irregularity, it cannot be said
that such an irregularity is a material one leading to failure of justice. Nothing of prejudice to the defendants is seen in the order impugned.
This Court is not inclined to entertain this petition under Article 227 of the Constitution of India and to consider interference in the order of restoration
passed by the Trial Court that only serves the cause of justice.
Accordingly, this petition stands dismissed.