CR No. 4517 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4517 of 2008 (O&M) Date of decision: 5.5.2009 Kamla Malik .. Petitioner v. Ram Kunwar and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Anil Kshetarpal, Advocate for the petitioner. Mr. S. P. Chahar, Advocate for the respondents. Rajesh Bindal J. Challenge in the present petition is to the order dated 11.6.2008, passed by the learned court below, whereby the application filed by the petitioner for restoration of the suit, which was dismissed in default, was dismissed. Learned counsel for the petitioner submitted that the case was fixed before the trial court for 25.11.2005. However, the file was taken up on 24.11.2005 as the learned Presiding Officer had to proceed on leave on 25.11.2005 and the case was adjourned to 11.1.2006 with the observation that all concerned be informed. As even 11.1.2006 was also declared a holiday, the case was taken up on 10.1.2006 and was adjourned to 23.2.2006 with the same observation that all concerned be informed. It was submitted that neither counsel for the petitioner- plaintiff nor the plaintiff was informed about the next date of hearing. On 23.2.2006, in the absence of counsel for either of the parties, the suit was dismissed in default. The petitioner-plaintiff having come to know on 25.4.2006 about the dismissal of the suit in default filed application for restoration thereof on 8.5.2006, which was dismissed by the learned court below, whereas the petitioner- plaintiff was not at fault and even if there is some lapse on the part of the petitioner-plaintiff or his counsel, the petitioner-plaintiff should not be made to suffer the same as the effort of the court should have been to decide the lis between the parties on merits. The application filed for restoration was supported by the affidavit of the counsel, who represented the petitioner before the trial court. On the other hand, learned counsel for the respondents submitted that there is no explanation available from the petitioner as to why further proceedings CR No. 4517 of 2008 [2] in the case after 25.11.2005 were not confirmed by the counsel for the petitioner- plaintiff, when the next date of hearing was fixed. It is a clear case of lapse on the part of the petitioner-plaintiff and there is no justification for entertaining the application for restoration of the suit, which is highly belated. He further submitted that in fact, plaint was subsequently amended and two more defendants were added, but in the present petition only two respondents have been added, accordingly, the petition is liable to be dismissed even for non-joinder of necessary parties. He further submitted that when the case was dismissed in default, it was fixed for service of newly added defendants No. 3 and 4. In response to the contentions of learned counsel for the respondents, learned counsel for the petitioner submitted that there is no error committed by the petitioner in impleading the parties in the present petition, as certified copy of the order supplied by the learned court below mentions names of only two defendants. He further submitted that once the application filed for restoration of the case was supported by the affidavit of the counsel, the contents thereof should have been believed as counsel is a responsible officer of the court. After hearing learned counsel for the parties, I find merit in the submissions made by learned counsel for the petitioner. It is a case which was quite at the initial stage as even service of newly added defendants No. 3 and 4 was not complete. The fact is that both the parties missed the case after it was adjourned twice, while taking up the file before the date it was actually fixed. It is evident from the order dated 23.2.2006, dismissing the suit in default, where neither the counsel for the petitioner-plaintiff nor the defendants appeared. It is also a fact that application for restoration, which was filed by the petitioner- plaintiff, was supported by the affidavit of the counsel. Once the counsel was owning the error, the petitioner-plaintiff should not have been made to suffer on that account. The lis between the parties should have been decided on merits. Accordingly, the impugned order passed by the learned court below is set aside, subject to payment of costs of Rs. 5,000/- to the respondents. The suit, which was dismissed in default on 23.2.2006 is restored to its original number to be proceeded further in accordance with law. Parties through their counsel are directed to appear before the learned court below on 23.5.2009 for further proceedings. (Rajesh Bindal) Judge 5.5.2009 mk