C.R.No.7125 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.7125 of 2008 Date of Decision:11.05.2009. Ram Kishan ...Petitioner Versus Randhir and another Respondents CORAM : Hon'ble Mr. Justice S.D.Anand. Present: Mr. Jitender Nara, Advocate, for the petitioner. Mr. Amit Jain, Advocate, for the respondents. ***** S.D.Anand, J. (ORAL) The challenge herein, at the instance of the plaintiff – petitioner, is to the validity of order dated 06.10.2008 vide which the suit was ordered to be “dismissed for want of compliance and non depositing of the cost in the legal aid fund". It is further apparent from the impugned order that the case was fixed for cross – examination to be conducted upon the witnesses of defendants – respondents. Certain amount of costs had been imposed upon the plaintiff – petitioner on an earlier date for hearing which was not paid up. Learned counsel for the plaintiff – petitioner argues that the plaintiff – petitioner was very much present in the Court and was also possessed of the amount of costs which were payable (as the cost of adjournment imposed on an earlier date) and that he had gone over to call his counsel, who was appearing in the Court of the learned Additional District Judge, Gurgaon in a case. By the time, the plaintiff- petitioner and his learned counsel returned to the learned Trial Court, the suit had been dismissed in default and for want of compliance. In support of the factual averment aforementioned, reliance is placed upon an affidavit dated C.R.No.7125 of 2008 -2- 30.01.2009 (Annexure P-3) filed by Shri Ajit Singh Dahiya, Advocate, District Courts, Gurgaon, to the above effect. In support of the averment that there is no warrant for the plea for restoration of the case, the learned counsel for the defendants – respondents relied upon a Full Bench judgment of this Court in Shri Anand Parkash Vs. Shri Bharat Bhushan Rai and another, 1981 PLR 555 and a Single Bench ruling of this Court in Chander Vs. Rohtas, 2001(4) RCR (Civil) 570 The facts in issue in the judgments relied upon by the learned counsel for the defendants – respondents were entirely different. Those judgments only laid down the proposition of law about what order has to follow if the amount imposed as costs under Section 35-B CPC was not paid up. In those cases, the counsel appearing on behalf of the plaintiff therein had not filed an affidavit to the effect that the plaintiff therein was actually available in the Court on that date; that the plaintiff was possessed of funds to pay the amount of costs; that the plaintiff had gone to call him from a local (and senior) Court where he was busy in two named matters and that by the time the plaintiff therein and his counsel returned to the learned Trial Court, the orders regarding dismissal in default and for non- compliance had already been passed. In this case, the learned counsel has also made an averment, in the course of the affidavit aforementioned, that he made verbal request to the learned Presiding Officer as well which was declined. The essential purpose of law is to do substantial justice between the parties and the rules of procedure are only meant for the purpose aforementioned. In this case, the suit came to be dismissed in default at 1.30 p.m. There are more than a dozen number of Courts at Gurgaon. Even, a normal counsel would have his cases fixed in more than one Court on a particular day. Though a counsel would be well advised to make C.R.No.7125 of 2008 -3- arrangement for conduct of cases in all Courts, the interests of the parties cannot be allowed to suffer on account of the alleged inability on the part of the counsel to enter appearance in a particular case. In view of the circumstances of the case, the petition shall stand allowed, subject to the payment of Rs.1,500/- as costs. The parties, through their learned counsel, are directed to appear before the learned Trial Court on 25.05.2009. May 11, 2009. (S.D.Anand) vinod Judge