C. R. No. 423 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 423 of 2010 Date of Decision : February 11, 2010 Sukhbir Singh and others .... Petitioners Vs. Mastu Ram and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sunil Panwar, Advocate for the petitioners. Mr. Vineet Chaudhary, Advocate for Caveator – respondents. * * * L. N. MITTAL, J. (Oral) : This is revision petition by Sukhbir Singh etc. under Section 115 of the Code of Civil Procedure (in short – CPC). Petitioners' father Krishan and uncle Des Raj – both sons of Maru had filed suit against respondents. The said suit was dismissed in default on 26.09.1996 by the trial court, when no one appeared for the parties. The petitioners moved application on 13.09.2002 i.e. almost six years after the dismissal of the suit, for restoration of the suit, alleging that petitioners' father Krishan – plaintiff no.1 had died on 17.06.1996 and the petitioners had no knowledge of pendency of the suit. In another suit titled Mastu Ram and others vs. Krishan and others, legal representatives of Krishan were brought on C. R. No. 423 of 2010 2 record. In first appeal in the other suit, application was moved on 02.09.2002 to produce copy of order dated 26.09.1996 (whereby the instant suit was dismissed in default), by way of additional evidence, and thereupon the petitioners learnt of dismissal of the instant suit. The restoration application was resisted by the respondents. Allegations made in the application were controverted. It was pleaded that petitioners had knowledge of dismissal order dated 26.09.1996 since inception. The petitioners were pursuing the instant suit also on behalf of their father and were fully aware of the pendency of the instant suit. Learned Civil Judge (Senior Division), Ambala, vide order dated 23.10.2008, dismissed the petitioners' application for restoration of the suit. First appeal preferred by the petitioners has since been dismissed by learned District Judge, Ambala, on 07.09.2009. Feeling still aggrieved, the instant revision petition has been preferred by the petitioners. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that the petitioners were not party to the instant suit and were not aware of the pendency thereof and petitioners' father Krishan, who was plaintiff no.1 in the suit, died on 17.06.1996 and therefore, the petitioners being unaware of the suit, could not pursue it. Learned counsel for the respondents, on the other hand, contended that the petitioners were fully aware of the pendency of the instant suit and had been pursuing the same even during the life time of their father. It was also contended that in the other suit titled Mastu Ram and others vs. Krishan and others, the petitioners had moved application on 18.01.1997 for being impleaded as legal representatives of Krishan and they were being represented in the other suit by Mr. J. K. Puri, Advocate and Mr. Rajpal, Advocate, who were also representing the plaintiffs in the C. R. No. 423 of 2010 3 instant suit. I have carefully considered the rival contentions and also perused the case file. On appreciation of evidence, both the courts have arrived at concurrent finding of fact against the petitioners. The said finding cannot be said to be perverse or illegal so as to warrant interference in exercise of limited revisional jurisdiction under Section 115 CPC. In addition to the aforesaid, the restoration application was moved almost six years after the suit had been dismissed in default. The petitioners had moved application on 18.01.1997 for being impleaded as legal representatives of Krishan in the other suit between the parties. Mr. J. K. Puri, Advocate represented the petitioners in the other suit and the same Advocate also represented the plaintiffs in the instant suit. Consequently, it cannot be said that the petitioners were not aware of the pendency of the instant suit. Learned counsel for the petitioners contended that the petitioners themselves were also party to the other suit along with their father and others and therefore, they were aware of the pendency of the other suit. However, it would not mean that the petitioners were not aware of the pendency of the instant suit because the petitioners were pursuing the other suit, which was also between the same parties and it is highly improbable that the petitioners were not aware of the instant suit, which had been instituted by their own father and uncle. Moreover, same counsel represented the side of the petitioners in both the suits. In addition to the aforesaid, learned counsel for the petitioners contended that Mr. J. K. Puri, Advocate and Mr. Rajpal, Advocate were examined by the respondents as their witnesses and they have stated that they were not aware of the dismissal order dated 26.09.1996. This contention cannot be accepted because Mr. Rajpal, Advocate appeared in C. R. No. 423 of 2010 4 the instant suit on 26.08.1996 and thereafter, his proxy Mr. Deepak Kumar, Advocate appeared on 09.09.1996 and 25.09.1996 and it was on the next date i.e. 26.09.1996 that the suit was dismissed in default. Consequently, it cannot be said that Mr. Rajpal, Advocate and Mr. J. K. Puri, Advocate were not aware of the dismissal of the suit for six long years. It is unexpected and unbelievable that the counsel would not inquire about the fate of the suit at all. For the reasons recorded herein above, I find no merit in the instant revision petition, which is accordingly dismissed. February 11, 2010 ( L. N. MITTAL ) monika JUDGE