Allowed

Gurnek Singh v. Bal Kishan & Ors.

Punjab & Haryana HC9 Mar 2011CR/264/2011

Case brief

AI extract

What is this about?

In this civil revision, the High Court allowed the petitioner's revision to set aside orders dismissing a suit in default for lack of instructions and a subsequent restoration application on limitation grounds. The Court held that notice was mandatory when counsel withdraws and limitation cannot be invoked against the party due to the trial court's procedural error.

What did the court decide?

Orders dated 18.12.2008 and 09.12.2010 are set aside and the application for restoration of the suit is allowed.

Gurnek Singh Vs Bal Kishan & Ors. — Contract and Commercial Disputes | Punjab & Haryana HC (2011)

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Civil Revision No.264 of 2011 -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.264 of 2011 Date of Order: 09.03.2011

Gurnek Singh

...Petitioner

Versus

Bal Kishan and others

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..Respondents

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CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA

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Present:Mr.Sherry K.Singla, Advocate for the petitioner.

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Mr. Vivek Suri, Advocate for respondents No.1 and 4

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RAJIVE BHALLA, J (Oral)

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Counsel for the petitioner submits that respondents no.2, 3, 5, and 6 need not be served as they have been proceeded against ex-parte before the trial Court.

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The petitioner prays for setting aside orders dated 18.12.2008 and 09.12.2010, passed by the Civil Judge (Junior Division), Patiala and by the Additional District Judge, Patiala, respectively.

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The petitioner filed a suit for declaration, that the sale deed dated 22.03.1996 is illegal, null and void, and for a permanent injunction to restrain the respondents from interfering in his possession. The contesting respondents filed a written

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Civil Revision No.264 of 2011 -2-

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statement. After framing of issues, the trial court called upon the petitioner to lead evidence. On 14.09.2001, as counsel for the petitioner pleaded no instructions, the Civil Judge (Junior Division), Patiala, dismissed the suit in default. On 14.01.2002, the petitioner filed an application for restoration of the suit. The application was dismissed on 18.12.2008 on the ground of limitation. An appeal filed by the petitioner was also dismissed.

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Counsel for the petitioner submits that as the petitioner's counsel pleaded no instructions, the trial Court should have sent a notice to the petitioner to come forward and pursue the suit. As the trial court failed to adopt this procedure, the order dismissing the suit in default is a nullity. It is further argued that as the petitioner had no knowledge of the dismissal of the suit, the application for restoration could not have been dismissed as barred by time. In support of his arguments that where an advocate pleads no instructions and withdraws from proceedings, notice should be issued to a litigant, counsel for the petitioner places reliance upon Harjinder Singh v. Kirpal Singh, 2000(2) RCR(Civil) 245 and Ram Niwas v. Smt. Gita Devi, 2009(1) RCR (Civil) 175,

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Counsel for respondents no.1 and 4 submits that an application for restoration of a suit has to be filed within 30 days of the dismissal of a suit. The order passed by the trial Court and the appellate Court are legally correct and should be affirmed.

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Civil Revision No.264 of 2011

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-3-

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I have heard counsel for the parties and perused the impugned orders.

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Where a counsel pleads no instructions and withdraws from a suit, it is imperative that a Court issues a notice to the party concerned informing him of this fact. The trial court dismissed the suit in default, without informing the petitioner that his counsel has pleaded no instructions. Reference in this regard may be made to Harjinder Singh v. Kirpal Singh, and Ram Niwas v. Smt. Gita Devi, (supra). As the error was committed by the Court itself the plea of limitation should not have been pressed into service against the petitioner.

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In view of what has been stated hereinabove, the revision is allowed, the orders dated 18.12.2008 and 09.12.2010 are set aside and the application filed for restoration of the suit is allowed. The suit is restored to the Court of Civil Judge (Junior Division), Patiala, to decide the matter afresh within three months, in accordance with law. The petitioner shall be granted three opportunities to conclude his evidence.

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Parties are directed to appear before the Civil Judge (Junior Division), Patiala, on 20.04.2011.

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(RAJIVE BHALLA) JUDGE

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March 09, 2011 nt

Gurnek Singh v. Bal Kishan & Ors.

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Gurnek Singh v. Bal Kishan & Ors.

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