Surjit Kaur vs Jagdish Singh and Others

Bakhshish Kaur, J.—A suit for specific performance filed by the petitioner somewhere in the year 1991 was dismissed in default on 26th July, 1994. An application for restoration of the suit was filed on 13th August, 1994. Since the. application was contested by the other, side, therefore, issues, arising from .the pleadings of the parties were framed and the plaintiff-applicant was directed to lead evidence. As the petitioner failed to produce evidence despite adjournments given to her sometimes subject to payment of costs, she failed to produce the evidence as well as failed to pay the costs. Consequently, the application for restoration of the suit was dismissed by the trial Court on 5th April, 1999. Aggrieved by this order the petitioner has preferred this revision,

I have heard Shri Y.P. Khullar, learned counsel for the petitioner and Shri Vikram Aggarwal, learned counsel for the respondents.

Shri V.P. Khullar, learned counsel has assailed the impugned order on two grounds, first that the trial Court has not recorded any finding that the petitioner was responsible for delaying the proceedings in the matter and for the disposal of the case. Secondly, the provisions u/s 35-B of the CPC being stringent, could be taken recourse to only in the rarest of rare cases. To support his argument, he has placed reliance on R.K. Malhotra Vs. Smt. Santosh Kaur, and Smt. Sushila Mittal Vs. Sh. Shankar Lal and Another, .

The facts of the case in hand are, however, entirely different from those of the cases cited above. In Smt. Devi Bai''s case (supra), some evidence was recorded and the same was not considered by the trial Court while dismissing the suit invoking the provisions of Section 35-A of the Code whereas in the case in hand, not even a single witness has been examined in support of the averments contained in the application for restoration of the suit.

The other contention raised by the learned counsel for the petitioner that no specific finding has been recorded by the trial Court that the petitioner is responsible for delaying the matter is without any substance. In my opinion, recording of such a finding would be immaterial. Does this case need any more transparency? The application for restoration of the suit is pending before the Court since 1994. Nearly five years have passed, but not even a single witness has been produced or examined by the applicant. What else is required to conclude that it is the applicant-petitioner who has been responsible for delaying the matter?

The extent of revisional powers of this Court is restricted i. der Section 115 of the Code. In Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, , it is held by the Hon''ble Supreme court that the High Court cannot while exercising its jurisdiction u/s 115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked.

Reliance in this regard is placed on The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, '' and '' The Municipal Corporation of Delhi Vs. Shri Suresh Chandra Jaipuria and Another, ."

Where a party is highly negligent in producing its evidence and the Court in the exercise of a jurisdiction so vested in it, passes an order closing''the evidence of the party, would it, in any manner, amount to acting in the exercise of the jurisdiction illegally or with material irregularity? Certainly not. In fact, I am of the view that the Court should have dealt with the case sternly earlier, instead of waiting for sufficiently long period of five years.

In view of the aforesaid, there is no merit in this revision petition. The same is dismissed.