CIVIL REVISION NO.1758 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 19, 2008 Kulbhushan Kumar Munrai and others .....Petitioners VERSUS Ashok Kumar Bhalla and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rahul Sharma, Advocate, for the petitioners. Mr. Santosh Kumar, Advocate for Mr. Akshay Bhan, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioners have a grievance that respondent No.1 has been shown extra indulgence in permitting restoration of the suit dismissed in default by ignoring the fact that his conduct was not such as may be indicated from the facts of the case. Plea is that this suit was dismissed in default on more than one occasion but still has been ordered to be restored while considering the application for restoring the application seeking restoration of the suit which also had been dismissed in default. As per the allegation, this has further CIVIL REVISION NO.1758 OF 2007 :{ 2 }: been done, ignoring the aspect of limitation while entertaining such a prayer. The facts, in brief, are that respondent-Ashok Kumar filed a suit for specific performance of an agreement to sell dated 12.9.1994. He also filed application under Order 39 Rules 1 and 2 CPC where order of status-quo qua the suit land was made. The suit was fixed for hearing on various dates in the year 2003. As per the averment in the application, on 27.1.2004, when respondent No.1 alongwith his counsel appeared before the Court, he found that the case was not listed in the cause list. He learnt that the same has been dismissed in default on 18.4.2003 and accordingly application for recall of the order and restoration of the suit was filed on 21.7.2003,which was dismissed in default on 15.11.2003. On having learnt about this fact on 27.1.2004, the application for restoration of the application was filed on 28.1.2004 and 29.1.2004. The application for condonation of delay was also filed, though according to respondent No.1, there was no delay in filing the application from the date of knowledge. Accordingly it is prayed that the orders dated 15.11.2003 and 18.4.2003, which marked the absence of respondent No.1-plaintiff be set-aside and suit restored to its original number. The petitioners filed reply to this application and raised number of objections. It is pointed out that the suit was earlier dismissed on 11.6.1998 and then on 18.4.2003, followed by the order dated 15.11.2003. The objection in regard to the maintainability of the application to claim more than one relief is also raised. It is also pointed out that the suit was filed in the year 1997 and despite CIVIL REVISION NO.1758 OF 2007 :{ 3 }: various opportunities, respondent No.1 has not cared to file reply and supplied documents under Order 7 Rule 14 CPC and Order 11 Rule 12 CPC. It is, thus, pointed out that the conduct of respondent No.1 is malicious and he is not bonafide in execution of agreement to sell. Challenging the maintainability of the application it is pointed out that petitioner No.4 had appeared on 15.11.2003 and adopted the written statement already filed by the co-defendants with regard to the application filed by respondent No.1-plaintiff on 16.7.2003. On 18.4.2003, the counsel for the petitioners was present and waited for the plaintiff for entire day before the case was dismissed in default again. It is noticed that the suit for specific performance is filed of an agreement dated 12.9.1994. This suit was dismissed on 11.6.1998 but was later restored on the statement made by the petitioners on 25.5.1999. When the case was fixed for reply to the application under Order 7 Rule 11 and Order 11 Rule 12 CPC, respondent No.1 again did not appear and the suit was dismissed on 18.4.2003. Thereafter the plaintiff filed an application for restoration of the suit on 21.7.2003, which was dismissed in default on 15.11.2003. Respondent No.1 then filed applications dated 28.1.2004 and 29.1.2004, which were dismissed on 11.10.2005 by the Additional Civil Judge, Panchkula. The said order was impugned by filing a revision and this Court set-aside the order dated 11.10.2005. Directions were issued to Additional Civil Judge (Senior Division), Panchkula, to consider the application of respondent No.1 dated 28.1.2004. The parties were directed to appear before the CIVIL REVISION NO.1758 OF 2007 :{ 4 }: Court on 5.12.2006. It is submitted on behalf of respondent No.1 before the Civil Judge that the restoration of the application for restoring the suit would be governed by Article 137 of the Limitation Act and as such could be filed within a period of three years. In support of right to maintain this application, reference is made to Section 141 CPC. On the contrary, counsel for the petitioners submitted that period of limitation for restoration of the suit is 30 days and the application for restoration of the application dismissed in default can not be restored at any time according to the choice of the party. It is accordingly stated that the application would not be maintainable. Mr.Sharma, counsel appearing for the petitioners, contends that the Court while dealing with the application filed for restoration of the suit could not have ordered the restoration of a suit itself. In fact the observations made by the Court, it can be seen that the Court was mainly considering the restoration of the application which was filed to restore the application for restoration of the suit was alone considered. It is observed by the Court that though period of 30 days of limitation for filing the application for restoration of the suit is provided but there is no limitation prescribed in the Act for filing the application for restoration of such an application. It is, thus, held that this application could be filed within a period of three years in terms of Article 137 of the Limitation Act. Accordingly, not only the application is restored but even the suit has been restored by disposing of the application filed under Section 5 of the Limitation Act by awarding a cost of Rs.3,000/-. CIVIL REVISION NO.1758 OF 2007 :{ 5 }: Since the Court was only considering the plea for restoration of the application, it was not proper for the Court to order restoration of the suit. For the purpose of restoring the suit, the question of limitation of 30 days would also arise, which apparently has been ignored by the Court. It is clearly made out from the observation of the Court that period of limitation for restoration of the suit would be 30 days and as such, the suit could have been restored only by condoning the delay in filing this application for restoration of the suit. All this apparently has escaped notice of the Court. Since the Court has not appreciated this aspect in this background, it would be appropriate to direct the Court to do this exercise in a proper and appropriate manner. The impugned order, as such, can not be sustained and the same is set-aside. The case is sent back to the trial Court for passing an order afresh and to decide if the suit could have been restored by condoning the delay while dealing with the application for restoration of application. The revision petition is accordingly disposed of. March 19 ,2008 ( RANJIT SINGH ) khurmi JUDGE