Single judge of Punjab & Haryana High Court dismissed a civil revision seeking restoration of a suit dismissed for want of prosecution, finding no irregularity or illegality as the petitioner failed to prove a reason beyond her control.
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Civil Revision No. 5169 of 2011 --1--
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Revision No. 5169 of 2011(O&M) Date of decision. 13.09.2011
Smt. Kanti
.... Petitioner
Versus
Deepak and another
...... Respondents
CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: Mr.S.R. Hooda, Advocate for the petitioner.
Vijender Singh Malik, J.
Smt. Kanti, petitioner has challenged by way of this revision petition the validity of the orders dated 21.03.2005(Annexure P-2), dated 03.03.2011 (Annexure P-5) passed by learned Civil Judge (Senior Division) Sonepat and dated 30.07.2011 (Annexure P-6) passed by learned Additional District Judge, Sonepat, whereby the suit brought by Smt. Kanti (Annexure P-2) was dismissed for want of prosecution and the application of the petitioner for restoration of the suit by re-calling the order dated 21.03.2005 has been dismissed by learned Civil Judge (Junior Division), Sonepat and the appeal preferred by the petitioner against the order dated 3.3.2011 has been dismissed by learned Additional District Judge, Sonepat.
In the application for restoration of the suit, Smt. Kanti claimed that on 21.03.2005 her counsel was busy in another case. According to her, she could not put in her appearance due to unrecoverable disease. She has also claimed that Sarupi, her sister, who had also filed a suit titled as
Civil Revision No. 5169 of 2011 --2--
Sarupi v. Deepak had colluded with the defendants and she also did not put in her appearance. She has further claimed that she had asked Sarupi to keep her informed about the progress of the case, but she did not inform her on account of her colluding with the defendants. She has further claimed that she was suffering from heart attack, high blood pressure, sugar, acidity etc. and was unable to attend the court.
The application was opposed and vide order dated 3.3.2011 learned Civil Judge (Junior Division), Sonepat dismissed her application being time barred. As said earlier, the appeal preferred by Smt. Kanta also did not go in her favour.
Aggrieved by the aforesaid orders, Smt. Kanta has brought this
petition.
I have heard Mr.S.R. Hooda, learned counsel for the petitioner and have gone through the record.
The civil suit dismissed for want of prosecution vide order dated 21.03.2005 was sought to be restored by filing application on 29.01.2007. Had the counsel for the petitioner been attending another court at the time of calling of the case, it was natural for him to have found out by the end of the day that the suit of Smt. Kanti has been dismissed for want of prosecution. It cannot be believed that he did not inform Smt. Kanti of this development. He himself could also file an application for restoration of the suit.
The stage of the case on 21.03.2005 is also necessary to be noted. It is apparent on the record that the case was fixed on that day for
Civil Revision No. 5169 of 2011 --3--
evidence of Smt. Kanti and it was last opportunity to her for leading her evidence. Admittedly, she was not there in the court on 21.03.2005 despite the fact that it was last opportunity for her evidence. In such situation, she was required to prove that she was prevented from appearing in the court for some reason beyond her control. She has stated in the application that she was suffering from so many ailments, yet no document to prima-facie show any such ailment suffered by the petitioner on the said date was put on the record. In the application for restoration of the suit, she had taken a contradictory plea that she came to her village on 20.01.2007 and came to know about the dismissal of her suit. She does not say in the same that she was bed-ridden till she filed this application. Nothing has come to primafacie show any collusion with Sarupi and defendants or that Sarupi had been asked by her to keep her informed of the proceedings of the case. When it was last opportunity to the petitioner to produce her evidence on 21.3.2005, she could not take rest at home and wait for any information from her sister.
In view of these circumstances, I find no irregularity much less illegality in the orders dated 21.03.2005(Annexure P-2) and dated 03.03.2011 (Annexure P-5) passed by learned Civil Judge (Senior Division) Sonepat and dated 30.07.2011 (Annexure P-6) passed by learned Additional District Judge, Sonepat. The revision petition is accordingly dismissed.
(VIJENDER SINGH MALIK) JUDGE
13.09.2011 dinesh
2 issues framed by the court
Whether the order dismissing the petitioner's application for restoration of a suit for want of prosecution was illegal or arbitrary.
Whether there was any collusion between the petitioner and the respondent in leading to the dismissal of the suit.
Smt. Kanti
Deepak
Vijender Singh Malik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
