Allowed

Jasmeet Kaur v. Joginder Singh and Ors.

Punjab & Haryana HC1 Dec 2011CR/6549/2011

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition assailing the dismissal of an application for restoration of a suit dismissed in default. The Court quashed the impugned order, set aside the dismissals by lower courts, and directed restoration of the suit with a costs penalty, issuing specific directions to expedite such applications in future to avoid delay.

What did the court decide?

The impugned order dismissing the restoration application was set aside and the suit was restored to its original number subject to payment of costs.

Jasmeet Kaur Vs Joginder Singh and… — Civil Procedure and Limitation | Punjab & Haryana HC (2011)

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Civil Revision No.6549 of 2011 (O&M) 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Revision No.6549 of 2011 (O&M) Date of decision:- 01.12.2011

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Ms. Jasmeet Kaur alias Amandeep Kaur

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....Petitioner

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Vs.

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S. Joginder Singh and others

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....Respondents

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CORAM: HON'BLE MR. JUSTICE A.N. JINDAL

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Present:Mr. Sanjeev Kumar Bawa, Advocate, for the petitioner.

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Ms. Gaganpreet Kaur, Advocate, for Mr. Baldev Raj Mahajan, Advocate, for respondent No.3.

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A.N. JINDAL, J (ORAL)

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The comments received from Mrs. Lukhvinder Kaur, Addl. Civil Judge (Senior Division), Ludhiana, have been perused. No further comments from District Judge, Amritsar, are required.

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This petition assails the order dated 01.08.2011 passed by the Additional District Judge, Amritsar, dismissing the appeal preferred by the plaintiff-petitioner (hereinafter referred as 'the petitioner') against the order 06.11.2008 passed by the Civil Judge (Junior Division), Amritsar, dismissing her application for restoration of the suit, which was dismissed in default on 16.02.1999.

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The suit was filed on 17.11.1995 and the same was

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Civil Revision No.6549 of 2011 (O&M) 2

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dismissed in default on 16.02.1999. The application for restoration of the suit was filed on 28.09.2000. The suit was dismissed in default at the very initial stage. Both the Courts below appear to have wasted 8 years in deciding the application for restoration of the suit. Even otherwise, in case of dismissal of a suit in default, there is no bar in restoring the same.

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It has come to my notice that the Courts below take much time in deciding such type of applications and do not apply their mind and continue to adjourn the same for nothing. The meritorious claims could not be thrown away unheard. The dismissal of such kind of applications would again invite filing of other suits. Even otherwise, the Himachal Pradesh High Court in case of Roshan Lal & another Vs. Rajinder Kumar & others, 2007(5) R.C.R. (Civil) 402, observed as under:-

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“3. Very often, in a number of cases, I have noticed a fanciful tendency on the part of the trial Judges to leisurely and pleasurely deal with interlocutory applications filed in pending suits. It is a great travesty of justice and a very grave misfortune of the litigants that the interlocutory applications in pending suits take such a long time for disposal whereas ordinarily and in the normal course these should be disposed of within a very very short time. In normal course and ordinarily in usual circumstances it should not take more a couple of weeks or a couple of months for disposing of these applications. Actually, if the restoration applications are filed within the limitation period, or if some other interlocutory applications are filed for grant of some innocuous or small reliefs, the trial Courts should ignore frivolous and fallacious defences, objections or contests to these applications and should ensure to decide all such applications with utmost expedition. The trial Courts perhaps do not realize that keeping such applications pending for long time, as in the present case for as long as

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Civil Revision No.6549 of 2011 (O&M) 3

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four years, defeats the ends of justice because the disposal of suits delayed by that much period.

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While the trial Court in this case unnecessarily took four years in disposing of a very simple application for restoration of a suit despite the fact that the application was filed within limitation period, the appeal Court on its part did not better as it took exactly one and half years in disposing of a simpler application for condonation of delay in filing the aforesaid appeal under Order 43Rule 1 of the Code of Civil Procedure. Actually, I do not subscribe to the view that in such a simple application for condonation of delay in filing such a simple appeal against the rejection of a restoration application, the parties should be burdened with leading of evidence by production of witnesses. The approach of the appeal Courts in such matters should be to advance the cause of justice and such a course can best be achieved by dispensing with the leading of evidence by production of witnesses. If evidence indeed is found to be inevitable in certain types of cases, the Courts should adopt the summary procedure by directing the parties to file the affidavits and counter affidavits of the respective parties and their witnesses. Any how the all embracing approach should be to advance the cause of justice and that object can best be achieved by shortening the disposal process of such simple, innocuous and petty matters. It is indeed unfortunate that such a simple appeal ought to have taken one and a half years for disposal.”

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The negligence on the part of the Presiding Officer not to expedite the disposal of the application is condemned. Further the conduct of the District Judge, Amritsar, who entertained the appeal without knowing that the appeal was not maintainable, also is not appreciable. Therefore, both the Officers are warned to be careful in future.

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The Court below instead of considering the application summarily, proceeded to follow the lengthy procedure. During such period, even the trial could be concluded. Even otherwise,

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Civil Revision No.6549 of 2011 (O&M) 4

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the application is accompanied by affidavit. There appear to be sufficient grounds for restoration. Plaintiff was not to be benefitted by getting the suit intentionally dismissed in default. The defendants are not in any way prejudiced by the restoration of the suit. The meritorious claims cannot be thrown away without hearing the parties. It is also in the interest of justice, equity and fair play to honour the principle of audi altrem partem. The delay in filing the application could be compensated with costs.

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As such, this petition is accepted; the impugned order is set aside and the suit filed by the petitioner is ordered to be restored to its original number, subject to payment of ` 5000/- as costs.

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December 01, 2011 ajp

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(A.N.JINDAL) JUDGE

Jasmeet Kaur v. Joginder Singh and Ors.

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Jasmeet Kaur v. Joginder Singh and Ors.

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