High Court Revision allowed setting aside Civil Judge order dismissing suit by default and restoration application due to clerical date error. Trial Court directed to give fresh opportunity for evidence subject to costs.
Impugned order set aside; Trial Court to give one more opportunity to produce evidence subject to payment of Rs. 5,000/- costs.
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C.R. No.1381 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.R. No.1381 of 2013 (O&M) Date of Decision: 05.03.2013
Dilbag Singh and others ....Petitioners
Versus
Punjab Singh ....Respondent
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:Mr. Sunil Agnihotri, Advocate for the petitioners.
DAYA CHAUDHARY, J. (ORAL)
The present revision petition has been filed for setting aside the Order dated 17.08.2010 passed by Civil Judge (Junior Division), Dasuya, vide which, the suit was dismissed in default and the application filed for restoration was also dismissed.
Learned counsel for the petitioners submits that the written statement was filed by the respondent/defendant and the petitioners filed the replication dated 16.01.2007 to the said written statement and the suit was fixed for plaintiff's evidence. However, learned counsel for the petitioner/plaintiff could not attend the Court on the date of hearing and the case was dismissed in default. The application for restoration of the said case was also dismissed only on the ground of typical error which occurred in the application. Learned counsel also submits that due to typical mistake, the date was mentioned as 07.11.2009, whereas, it was to be mentioned as 17.11.2009. The trial Court by taking a wrong inference and bona fide mistake, dismissed the application of the petitioners.
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I have heard the arguments of learned counsel for the petitioners and have also perused the impugned Order as well as other documents on the file.
It has been mentioned in the impugned Order that the suit was dismissed in default on 16.11.2009 whereas it was mentioned in the application for restoration that the case was on 07.11.2009 and the counsel for the plaintiff came to know about dismissal of the Order on 17.11.2009. It has also been mentioned that the applicant has tried to mislead the Court. On perusal of the Order, it appears that it was a typical mistake on the part of counsel and the party should not suffer because of any mistake in the typing. Admittedly, it appears that the trial Court has taken inference only on the basis of date.
The Hon'ble Supreme Court of Inida in Sardar Amarjit Singh Kalra (dead) by L.Rs and others vs Parmod Gupta and others 2003(3) SCC 272 observed as under :-
“ Law of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.”
The same observation has been made by Hon'ble the Supreme Court in another case titled as N. Balajit vs Virendra Singh and others 2004(8) Supreme Court Cases 312 wherein it has been held that procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice.
In view of ratio of judgments and also the facts and circumstances of the present case, the revision petition is allowed and the
C.R. No.1381 of 2013 (O&M)
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impugned order under challenge is set aside. Trial Court is directed to give one more effective opportunity to the petitioners to produce their entire evidence at their own responsibility preferably on the next date of hearing. The opportunity is granted subject to payment of costs of Rs.5,000/- to be paid by the petitioners to the respondent. It is made clear that if the petitioners fail to avail the opportunity granted by this Court, the revision petition shall be deemed to have been dismissed.
A copy of this Order be supplied to learned counsel for the petitioner under the signatures of Special Secretary attached to this Court.
05.03.2013 gurpreet
(DAYA CHAUDHARY) JUDGE
2 issues framed by the court
Whether a typical clerical mistake regarding the date in a restoration application should result in the dismissal of the suit by default.
Whether the impugned order dismissing the restoration application should be set aside to allow the petitioner to produce evidence.
Colour shows how this judgement treated each authority
Sardar Amarjit Singh Kalra (dead) by L.Rs and others vs Parmod Gupta and othersRelied on¶18
Sardar Amarjit Singh Kalra (dead) by L.Rs and others vs Parmod Gupta and others 2003(3) SCC 272 · Who else cites this
N. Balajit vs Virendra Singh and othersRelied on¶20
N. Balajit vs Virendra Singh and others 2004(8) Supreme Court Cases 312
Dilbag Singh and others
Punjab Singh
Daya Chaudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
