Civil Revision No. 6565 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 6565 of 2009 Date of decision : June 28, 2010 Angrej Kaur ....Petitioner versus Sukhpal Kaur and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. AK Walia, Advocate, for the petitioner Mr. Vikas Singh, Advocate, for respondent no. 1 L.N. Mittal, J. (Oral) Angrej Kaur election petitioner has filed the instant revision petition under section 115 of the Code of Civil Procedure (in short, CPC) assailing order dated 3.3.2009, Annexure A/2, passed by learned Election Tribunal (Additional Deputy Commissioner), Mansa thereby dismissing application of the petitioner moved for recalling order dated 11.2.2009, Annexure A/1, passed by the Election Tribunal whereby election petition filed by the petitioner challenging election of respondent no. 1 Sukhpal Kaur as Sarpanch of Gram Panchayat of Jattana Khurd, was dismissed for non-prosecution. On 11.2.2009, none appeared for the parties before the Election Civil Revision No. 6565 of 2009 -2- Tribunal and therefore, the election petition was dismissed for non- prosecution. However, the petitioner moved application on 26.2.2009 for restoration of the election petition by recalling order dated 11.2.2009. The said restoration application has been dismissed by the Election Tribunal vide impugned order dated 3.3.2009, Annexure A/2. I have heard learned counsel for the parties and perused the case file. Learned counsel for respondent no. 1 raised preliminary objection that the instant revision petition under section 115 CPC is not maintainable. There is considerable merit in the contention. Under section 115 CPC revision petition lies against order of a court subordinate to the High Court. However, Election Tribunal which passed the impugned order cannot be said to be a court subordinate to the High Court. Consequently, instant revision petition under section 115 CPC is not maintainable. However, learned counsel for the petitioner orally prays that the instant revision petition be treated to be revision petition under Article 227 of the Constitution of India. Under Article 227 of the Constitution of India, High Court has power of superintendence over all courts and tribunals throughout its territories. Consequently, the instant revision petition against the impugned order of the Election Tribunal would be maintainable under Article 227 of the Constitution of India. The oral prayer made by counsel for the petitioner is accordingly allowed and the instant revision petition shall be treated to have been filed under Article 227 of the Constitution of India. Learned counsel for the petitioner contended that the petitioner Civil Revision No. 6565 of 2009 -3- could not appear before the Election Tribunal on 11.2.2009 on account of death of a relative whereas petitioner's counsel could not appear being busy in other court. It was also contended that restoration application was filed on 26.2.2009 i.e. within 15 days after the passing of order dated 11.2.2009 whereby election petition was dismissed for non-prosecution and therefore, the election petition should have been restored. I have carefully considered the aforesaid contention and find force therein. Courts/Tribunals should be liberal in restoring cases dismissed in default unless there is some malafide intention or other exceptional circumstances. In the instant case, restoration application was moved promptly and without any delay. The same should have been allowed by the Election Tribunal on payment of costs. It may be noticed that it was only first date of hearing for evidence of the election petition on 11.2.2009 before the Election Tribunal when the election petition was dismissed for non-prosecution. In addition thereto, even none appeared for the returned candidate/respondent no. 1 before the Election Tribunal on 11.2.2009. For the reasons aforesaid, it becomes manifest that the impugned order dated 3.3.2009, Annexure A/2, passed by the Election Tribunal dismissing petitioner's restoration application is completely un- sustainable. Accordingly, the instant revision petition is allowed and impugned order dated 3.3.2009, Annexure A/2, passed by the Election Tribunal is set aside and the election petition filed by the petitioner is restored to the files of the Election Tribunal subject to payment of Rs 2500/- as costs precedent to respondent no. 1. Civil Revision No. 6565 of 2009 -4- Parties are directed to appear before the Election Tribunal on 27.7.2010. ( L.N. Mittal ) June 28, 2010 Judge 'dalbir'