IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision Nos.123 & 124 of 2007. Judgment reserved on: 28.3.2008. Date of decision: 10th April, 2008. C.R. No.123 of 2007: Shri Raj Pal and others ….Petitioners. -Versus- Smt.Sneh Lata ….Respondent C.R. No.124 of 2007: Sh.Darshan Kumar Wahi …..Petitioner -Versus- Smt.Sneh Lata ….Respondent Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting?. No For the Petitioners: Mr.G.C.Gupta, Senior Advocate with Ms.Binu, Advocate. For Respondents: Mr.Ashok Sood, Advocate Deepak Gupta, J. Both these petitions involve similar questions of fact and law and are therefore being disposed of by a common judgment. The petitioners in both the cases are tenants and the respondent is the landlady. Facts of CR No.123 of 2007: The landlady filed an eviction petition against the tenants (petitioners herein) on 20.7.1998 which was numbered as case No.95-2 of 98. The tenants contested the petition and issues in the case were struck on 23.4.2002. Thereafter, the matter was listed for 2 evidence of the landlady on 24.7.2002. No steps were taken to summon the witnesses and the matter was adjourned to 7.10.2002. For 7.10.2002 no steps had been taken to summon the witnesses and adjournment was prayed for and the matter was adjourned for the evidence of the landlady to 8.1.2003. On 8.1.2003 though two witnesses were served neither they nor the landlady were present, adjournment was sought for and the matter was adjourned to 8.4.2003. On 8.4.2003 one Sh.Baldev Negi, Advocate appeared vice Sh.C.P.Sood, Advocate for the landlady. On this date also the landlady was not present. One witness who was present was discharged on the request of the counsel appearing for the landlady. On 7.8.2003 none appeared for the landlady. The matter was called twice and dismissed in default. Facts in CR No.124 of 2007: This case was filed on 8.4.1998. The issues were struck on 16.10.1999. When the case was listed for evidence an application for appointment of local Commissioner to examine the landlady was filed. This application was rejected on 17.6.2000. The matter was thereafter listed on 9.9.2000 and 2011.2000 for evidence of the landlady but no evidence was present. Thereafter, the mater was again listed on 8.3.2002, 17.4.2002, 24.7.2002, 7.10.2002, 8.1.2002 and 8.4.2003. The landlady was not present even on a single occasion. The witnesses, if any, present were not examined on the ground that landlady was to be examined first and the case was got adjourned. This case was also adjourned for 7.8.2003 when it was dismissed for default. 3 In both the cases virtually identical applications for restoration of the Rent Petitions were filed. The applications read as follows: “1.That the above noted petition was fixed for evidence of the petitioner on 8.4.2003, on which date the same was adjourned to 7.8.2003 for the evidence of the petitioner. 2.That the counsel for the petitioner, by inadvertent mistake noted down the date as 8.8.2003 and also informed the same date to the petitioner. 3.That on 8.8.2003, the counsel for the petitioner noticed that the case was not listed in the daily cause list. Where upon the counsel for the petitioner made enquiries from the court and came to know that the case was in fact, fixed for 7.8.2003 and on the said date, the same was dismissed in default. 4.That the absence of the petitioner and her counsel on 7.8.2003 was not intentional but was bonafide on account of the aforesaid fact. 5.That the aforesaid cause is sufficient to restore the petition and to set- aside order dismissing the petition in default. The application has been filed without any delay as 9.8.2003 and 10.8.2003 were holidays.” The applications were contested by the tenants. Evidence of the landlady was recorded. The landlady in evidence examined her husband and General Attorney Ravinder Lal Kuthiala. According to him his wife could not appear on 8.4.2003. He had asked Sh.C.P.Sood, Advocate about the next date and had been informed that the next date fixed is 8.8.2003. According to this witness he and his wife (landlady) alongwith Sh.Vivek Karol, an expert witness were present in Court on 8.8.2003. When the case was not found in the cause list Sh.C.P.Sood, Advocate enquired from the concerned official. He was informed that the case was actually fixed on 7.8.2003 and had been dismissed in default. Sh.C.P.Sood, Advocate appeared as the other witness. According to him on 8.4.2003 he had wrongly noted the next date as 8.8.2003 and had telephonically informed Sh.Ravinder Lal Kuthiala that the next date fixed was 4 8.8.2003. On 8.8.2003 when the case was not mentioned in the cause list he enquired from the Ahlmad and found that the case had actually been dismissed in default on 7.8.2003. In cross examination he states that he does not maintain a diary and that he enters the dates of the cases in the computer. He did not produce or proved the record of the computer. No evidence was led by the tenants. On the basis of the evidence led, the trial Court allowed the applications on the ground that the counsel had inadvertently noted down the next date as 8.8.2003 instead on 7.8.2003. The tenants filed appeals before the Appellate Authority which appeals have been dismissed. Hence, the present Revision Petitions. I have heard Sh.G.C.Gupta, learned senior counsel for the tenants and Sh.Ashok Sood, learned counsel for the landlady. Sh.G.C.Gupta, submits that both the courts below have passed the impugned orders without taking into consideration various relevant factors. In the application which has been quoted in extenso above there is no mention that the parties or the witnesses were present. Sh.Gupta submits that it is apparent that neither the party nor witnesses were present, since according to him if they had actually come to Shimla then the application would have been signed and supported by an affidavit of the landlady. He further contends that in both the cases process fee was filed for summoning of the witnesses and in the process fee the next date of hearing was correctly mentioned as 7.8.2003. The process fee was filed on 9.4.2003. He, therefore, submits that the explanation given in the application as well as the statement of the counsel is contradicted by 5 the record. He further submits that the counsel for the landlady failed to produce the brief/file of the case to show that the date had been wrongly recorded. Shri Ashok Sood, learned counsel appearing on behalf of the landlady submits that both the courts have given pure finding of fact which should not be interfered in revisional proceedings. He further submits that the mistake occurred when the date was being noted from the brief/case file to the computer and that the party should not suffer for the fault, if any, of the counsel. He submits that the explanation given is correct and the petitions should be rejected. Normally this Court is loathe to interfere in the findings of fact recorded by the Courts below. Revisional jurisdiction of this Court is very limited and this Court would normally not upset findings of fact. However, where the Courts below do not taken into consideration the material on record there is an error of jurisdiction and this Court is duty bound to look into the entire material. I have therefore gone through the case files of both the cases and the entire record in detail. It is apparent that in both the cases the landlady had never appeared till 8.4.2003 despite large number of opportunities having been granted to her. On 8.4.2003 the matter was adjourned to 7.8.2003 and it was made clear that this was the last and final opportunity which the landlady would get for leading evidence. According to the landlady, she, her husband and Sh.Vivek Karol one of the witnesses were present on 8.8.2003. Neither landlady nor Sh.Vivek Karol have been examined as witnesses. The 6 husband and General Attorney of the landlady was examined as a witness. According to him, all three persons were present. If that were so the applications for setting aside should normally have been drafted on the same date and should have been signed by the landlady or her attorney. If Sh.Vivek Karol had come on 8th August, 2003 he would have naturally informed the landlady or her counsel that in fact he had been summoned for 7th August, 2003. Why did Sh.Vivek Karol not appear on 7th August, 2003? This question has not been answered. Only one witness Sh.Vivesh was present on 7.8.2003 and his presence had been marked. Both the courts below have conveniently ignored that if Vivek Karol had been served he should have been present on 7.8.2003. The non-examination of Vivek Karol, therefore, raises a doubt regarding the veracity of the version of the landlady especially when neither the application is signed by her nor her affidavit has been filed in support of the application. There is no explanation worth the name to explain how in the process fee filed on 9.4.2003, the next date of hearing was correctly mentioned as 7.8.2003, if the counsel had wrongly recorded the date as 8.8.2003. Sh.Ashok Sood has contended that the mistake occurred while entering the date in the computer and the process fee was filed on the basis of the brief/file cover of the case. This explanation does not appear to be correct. If that were so, the counsel at the time of preparation of the process fee would have realised that he had entered the wrong date in the computer. It was also then incumbent to produce the file cover to show what was the date noted. 7 In the application filed on behalf of the landlady there is no mention of the date having been wrongly noted in the computer. In fact the explanation is that the counsel by inadvertent mistake noted the date as 8.8.2003. The original counsel was in fact not present on 8.4.2003. He was represented by a vice counsel. Neither the counsel who appeared on 8.4.2003 has been examined nor his affidavit filed. From a perusal of the entire record, I am clearly of the view that neither the landlady nor her husband nor any witnesses were present in Court on 7.8.2003. This was the last and final opportunity given to the landlady to produce her evidence. Therefore, it appears that the counsel chose not to appear. This ruse of getting the case dismissed in default, cannot be allowed to succeed. It was obvious that the evidence, in the absence of the landlady would have been closed on 7.8.2003 and therefore the case, in my opinion, was purposely got dismissed in default. By getting the case restored the party gets another date to lead evidence. This unethical practice cannot be allowed to succeed. Both the courts below have totally ignored fact that the correct date is mentioned in the process fees. The absence in the application of any averment that the landlady, her husband or her witnesses were present also clearly shows that they were not present on 7.8.2003. Since they were absent they cannot be indirectly allowed another opportunity to lead evidence. It is clear that the evidence and material on record has been totally misread and mis-appreciated by both the learned Rent Controller and the learned Appellate Authority calling for interference in revisional jurisdiction. 8 In view of the above discussion, I allow both these petitions, set-aside the orders of the learned Appellate Authority and the learned Rent Controller in both the cases and dismiss the applications for restoration filed by the landlady. No order as to costs. April 10, 2008. ( Deepak Gupta ), PV Judge