Civil Revision No. 5636 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5636 of 2008 Date of decision: 20.01.2009. Kewal Krishan ...Petiitioner Versus Joginder Singh and another ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Sanjiv Pandit, Advocate, for the petitioner. ***** S.D.ANAND, J. A civil suit filed by the plaintiff-petitioner against the defendant- respondent was dismissed by the learned Trial Court, vide order dated 17.11.2004 as none appeared on his behalf on that date. The plaintiff-petitioner filed a pea for a plea for restoration of the case which was declined by the learned Trial Judge vide order dated 31.7.2008 (Annexure P-4). It was held by the learned Trial Judge that the petitioner- plaintiff has not been able to prove any sufficient ground for the setting aside of the exparte proceedings. In revision, the learned counsel for the plaintiff-petitioner applies for invalidation of that finding by pointing out that the suit came to be dismissed in default only because of the fact that the Clerk of the learned counsel had mistakenly noted the next date of hearing to be 18.12.2004. It is further argued that the learned Trial Court did not attach Civil Revision No. 5636 of 2008 -2- **** required importance to the diary produced by the Clerk of his learned counsel which would have borne out the correctness of the averment that the case came to be mistakenly noted to have been adjourned to 18.12.2004. There is no merit in the plea. Assuming, for the sake of arguments, that the averment made by the learned counsel for the plaintiff-petitioner is factually correct, there is no explanation why the plea for restoration came to be filed on 15.3.2005. Further, the plaintiff-petitioner did not produce the law diary and the brief maintained by the learned counsel representing him in ordinary course of business. The Court did notice the statement made by the Clerk that he maintains brief of the case and also the law diary but the witness did not place on record “noting given by the advocate in the diary or on the brief to show that date was noted down by his counsel on his brief.” On that premise, the learned Trial Court noticed that it amounts to “clear cut hiding of the evidence which is actually needed for disposing of the present application.” On the point of delay, the learned Trial Court observed as under:- “After the period of 30 days from from the date of dismissal of the suit, the applicant was required to explain each and every delay after which application was filed but in the present case, in my view, applicant has failed to explain the delay in filing of the present application. Therefore, I am of the view, the application filed by the applicant for condoning the delay cannot be accepted and delay cannot be condoned in this case as the delay is not explained and the only conclusion is Civil Revision No. 5636 of 2008 -3- **** that the application filed by the applicant for the restoration of the suit is time barred.” Apart therefrom, the learned Trial Court noticed that on three dates of hearing preceding 17.11.2004 (i.e. the date on which the suit came to be dismissed in default), the plaintiff-petitioner had not filed process fee for issuance of summons to the defendant/respondent). Learned counsel for the petitioner is not in a position to argue that the impugned order proceeds on factually incorrect premise. He is also not able to invite the attention of this Court to any fact which could justify the invalidation of the impugned order. In the totality of the circumstances of the case, I have no hesitation in holding that finding recorded by the learned Trial Judge that the application is time barred and that the plaintiff-petitioner had not been able to prove the existence of sufficient grounds to restore the suit deserves affirmation and it so held accordingly. Dismissed. January 20, 2009 (S.D.Anand) Pka Judge