IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CR. No. 6539 of 2006 Date of Decision: February 8,2008 Buta Singh ........Petitioner Versus Malkiat Singh ..........Respondent Coram: Hon'ble Mr.Justice Surya Kant Present: Mr.S.K.Jain, Advocate for the petitioner Mr.Sandeep Majithia, Advocate for the respondent Surya Kant, J. This revision petition is directed against order dated 13.11.2006 passed by the learned Additional Civil Judge (Senior Division) Sirsa whereby the petitioner's application to accept his appearance in a suit for recovery under Order XXXVII of the Code of Civil Procedure (for short`CPC') has been dismissed and as a consequence thereto, the respondent-plaintiff's suit has been decreed with costs. The facts may be noticed briefly. The respondent-plaintiff filed a suit for recovery of Rs. 1,37,600/- under Order XXXVII CPC against the petitioner. Upon notice, the petitioner was served on 2.12.2005 and was required to cause his appearance in the Court within ten days. 11th December,2005 was a Sunday whereas on 12.12.2005, the learned Presiding Officer was on leave. The petitioner, accordingly, moved an application on 13.12.2005 to allow him to cause his appearance in the suit. The aforesaid application has now been dismissed vide the impugned order after holding that in terms of the period stipulated in the notice, the petitioner was required to appear within ten days and the said period having expired on 12.12.2005 and there being no application for CR No. 6539 of 2006 -2- condonation of delay, there exists no ground to allow the petitioner to put his appearance. Notice of motion was issued and in response thereto, learned counsel for the parties have been heard. It is not disputed that in terms of the notice-period, the petitioner could appear till 12.12.2005. Admittedly, the Presiding Officer was on leave on 12.12.2005 and, thus, the Court was non-functional. The well known maxim that Actus Curae Neminer Fact Injuriam i.e. the act of Court does wrong to none, aptly applies to the facts and circumstances of this case. Due to non-availability of the Presiding Officer on 12.12.2005, the only recourse left to the petitioner was to cause his appearance on the immediate next working day. He actually put in appearance in the Court on 13.12.2005. The petitioner, thus, cannot be made to suffer for an incidental circumstance which was beyond his control. For the reasons aforestated, this revision petition is allowed. The impugned order is set aside and as a consequence thereto, the subsequent judgment and decree passed by the learned trial Court are also set aside. The petitioner shall be taken to have caused his appearance in the suit. The learned trial Court shall now proceed in the matter in accordance with law. The parties are directed to appear before the learned trial Court on 20.3.2008. A copy of the order be given dasti on usual payment. ( Surya Kant ) February 8, 2008 Judge arya