C.R. No. 1866 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 1866 of 2009 (O&M) Date of Decision: 2.4.2009 Suresh Kumar ....Petitioner Versus Vinod Kumar and others ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. R.S. Chahal, Advocate for the petitioner. RAJESH BINDAL J **** The plaintiff has approached this Court by filing the present petition challenging the order dated January 8, 2009, passed by the learend Court below whereby the application for restoration of the suit, which was dismissed in default, was dismissed. Briefly the facts are that the petitioner filed a suit for declaration and permanent injunction on January 27, 2007. The same was dismissed in default on November 10, 2008. On November 11, 2008, the petitioner filed an application for restoration thereof. On January 8, 2009, learned Court below directed the restoration of the suit subject to payment of Rs. 1000/- as costs, to be deposited with legal aid fund and the case was directed to be put up after lunch. Subsequent thereto after noticing that the costs of Rs. 1000/- imposed has not been tendered the application for restoration was dismissed. It is this order which is impugned in the present petition. Learned counsel for the petitioner submitted that the costs imposed by learned Court below had infact been deposited with the District Legal Services Authority, Fatehabad, on January 8, 2009 vide receipt No. 0029742 (Annexure P4) and once the amount of costs imposed by learned Court below for restoration of the suit had been paid, there was no question for dismissal of the application for restoration on the ground that costs had not been paid. There being patent error on record, the impugned order deserves to be set aside. Heard learned counsel for the petitioner and perused the record. For the view I am taking I do not deem it appropriate to issue notice as that would unnecessarily delay the process and propose to decide the present petition on the basis of the material placed on record by the petitioner. On January 8, 2009, while considering the application for restoration of the suit filed by the petitioner, learned Court below passed the following orders:- “An application for restoration of the suit which was dismissed in default under Order 9 Rule 8 of C.P.C. vide order dated 10.11.2008 was filed. Notice of the application C.R. No. 1866 of 2009 (O&M) 2 was given to the learned counsel for the respondents- defendants who raised no objection to the said application. In the interest of justice, the application is allowed subject to the condition that applicants-plaintiffs shall deposit costs of Rs. 1000/- in the legal aid fund today, failing which the application shall be deemed as dismissed. Case file be put up after lunch break for tender the cost receipt and for further proceedings.” By a subsequent order passed on the same date while noticing that the costs of Rs. 1000/- had not been tendered, the application for restoration was dismissed. The order passed at that stage is as under:- “ Case file again taken up after lunch break. Costs of Rs. 1000/- not tendered by the learned counsel for the applicants-plaintiffs. Therefore, in pursuance of above stated order application stands dismissed. File be consigned to the record room, after due compliance.” Learned counsel for the petitioner has produced on record receipt No. 0029742 in original showing deposit of Rs. 1000/- with District Legal Services Authority on account of costs imposed in the aforesaid case titled Suresh Kumar and another Vs. Vinod Kumar and others. A perusal of the receipt shows that the amount was deposited on January 8, 2009. Learned court below vide order passed in the forenoon session of the Court had directed the petitioner to deposit a sum of Rs. 1000/- with the legal aid fund and the matter was directed to be put up after lunch. Though the claim of the petitioner is that before the file was taken up the amount of costs had already been deposited but still the learned Court with a biased approach had dismissed the application for restoration. However, without going into this controversy finding that the amount of costs imposed had been deposited on the same date, even if belated, I deem it appropriate to quash the order passed after lunch dismissing the application for restoration and holding that there was compliance of the order passed in the forenoon session regarding deposit of costs and as a result thereof, the application for restoration of the suit which was dismissed in default is allowed and the suit filed by the petitioner is restored to its original number to be dealt with on merits. The petitioner is directed to appear before the Court below on May 16, 2009. Learned Court below may summon the respondents also. The revision petition is disposed of accordingly. (RAJESH BINDAL) 2.4.2009 JUDGE Reema