C.R No.7668 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R No.7668 of 2010 Date of order: 28.1.2011 Manjit Kaur ....Petitioner Versus Darshan Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.K. Joshi, Advocate for the petitioner. Mr. Puneet Sharma, Advocate for respondent Nos.1 to 4. JASWANT SINGH, J Present petition preferred by the plaintiff-petitioner under Article 227 of the Constitution is directed against the impugned order dated 4.9.2010 passed by the Civil Judge (Jr.Division), Dasuya whereby an application filed by him for restoration of the suit has been dismissed. Brief facts of the case are that the plaintiff-petitioner filed a civil suit No.76 dated 16.7.1997 against defendants-respondents for possession of land measuring 40 kanal 19 Marlas situated in village Talwandi Dadian District Hoshiarpur as described in the head note of the plaint. It transpires that during the pendency of the suit, none appeared for the plaintiff on 5.11.2005 (P.1) and the suit was dismissed in default for want of prosecution by the learned trial Court. An application (P.2) on the C.R No.7668 of 2010 #2# same day i.e 5.11.2005 is purported to have been filed for restoration of the suit but the same has been dismissed by learned trial Court vide order dated 4.9.2010 (P.3). Heard learned counsel for the parties and perused the record. It is argued by learned counsel for the petitioner that learned trial Court has wrongly dismissed the application for restoration by invoking the provisions of Order 17 Rule 2 CPC. It is also argued that there was a sufficient cause explained to the learned trial Court for non- appearance of the counsel as he was busy in another court and the application is filed on the same date. On the other hand, learned counsel for the respondents opposed the submissions made by learned counsel for the petitioner and justified the order dated 4.9.2010 being perfectly sustainable in the eyes of law. The only ground for rejection of the application for restoration by the learned trial Court is that the applicant-plaintiff has failed to satisfied the court that there was sufficient cause of reasons for their non-appearance on 5.11.2005 and merely the fact that the counsel for the plaintiff-petitioner was busy in another courts was not a sufficient cause in view of order 17 Rule 2 © of the CPC. In my opinion, learned trial Court has adopted a very hyper- technical approach while dismissing the application for restoration after a period of five years from the date of its filing. A perusal of the order dated 5.11.2005 reveals that in the civil suit, defendants were already ex parte. There is nothing on record to substantiate that plaintiff-petitioner or their counsel had committed any such default of non-appearance on earlier occasions in this case. So far as the pressing into service the order 17 Rule C.R No.7668 of 2010 #3# 2 CPC by learned trial Court is concerned that is in my opinion is wholly misplaced and the relevant provision for restoration is Order 9 Rule 4 CPC and not Order 17 Rule 2 CPC. The relevant provisions of Order 9 Rules 3 & 4 and Order 17 Rules 1 & 2 of the CPC are reproduced hereunder: “Order IX 1. & 2 xx xx 3. Where neither party appears, suit to be dismissed.- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. 4. Plaintiff may bring fresh suit or Court may restore suit to file.- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. Order XVII 1. Court may grant time and adjourn hearing.- (1) the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: (2) Costs of adjournment.- In every such case the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit: (a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, © the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, C.R No.7668 of 2010 #4# (d) & (e) xx xx [Punjab].- (i) To rule 1, add the following as sub-rule (3):- “(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith. (ii) xx xx” 2. Procedure if parties fail to appear on day fixed.- Where, on any day to which the hearing of the suit is adjourned, t4he parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. [Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.] A perusal of order dated 5.11.2005 reveals that the suit was dismissed in default for want of prosecution and therefore, it can be safely concluded that dismissal in default was ordered under Order 9 rule 3 CPC and not under the provisions of Order 17 Rule 2 CPC and the proper remedy for making an application is under Order 9 Rule 4 CPC. The reasoning adopted by the learned trial Court is not acceptable as the provisions of Order 17 Rule 1 (2) (c) CPC are provided for a different situation and in that contest, it is envisaged that the engagement of a counsel in another court is not a ground for adjournment of a case. Had there been that eventuality before the learned trial Court while passing the order dated 5.11.2005, it ought to have proceeded further, if such party were present in view of the explanation given under Order 17 Rule 2 CPC instead of dismissing the suit for default. Infact the learned trial Court while passing the impugned order dated 4.9.2010 has understood the term/phrase “dismissal in default of the suit” and to “proceed with the case” as one and C.R No.7668 of 2010 #5# the same thing, which is not sustainable in view of the provisions reproduced hereinabove. Keeping in view the facts and circumstances, present petition is allowed and the impugned order dated 4.9.2010 passed by the Civil Judge (Jr.Division), Dasuya is set aside and the suit bearing RBT No.76 dated 16.7.1997/16.5.2004 is restored and learned trial Court is directed to proceed further with the case from the stage when the order dated 5.11.2005 was passed. It is further directed to decide the suit expeditiously preferably within a period of one year as the matter pertains to the year 1997. January 28, 2011 ( JASWANT SINGH ) manoj JUDGE