C.R. No.3266 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.3266 of 2009 Date of decision 10 .5.2010. Ram Parshad and another ...... Petitioners. versus Tirath Ram and others ...... Respondent. CORAM : HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. R.S.Chauhan, Advocate for the petitioners Mr. R.D.Sharma, Advocate for the respondents. K.C.PURI. J. This is a revision petition under Article 227 of the Constitution of India for issuance of appropriate order or direction for setting aside the order dated 24.7.2006 (Annexure P-4) vide which the appeal filed by the petitioners before the learned Additional District Judge, Gurdaspur titled Ram Parsad and another vs. Tirath Ram and others was dismissed in default and further the order dated 25.9.2008 (Annexure P-7) vide which application for restoration of appeal has erroneously been declined be also set aside. The facts in brief are that the original appeal was dismissed in default on 24.7.2006, by the Court of Sh.S.K.Arora, Additional District Judge, Gurdaspur. The grounds taken are that Sh. Viresh C.R. No.3266 of 2009 2 Nanda, Advocate, District Courts, Gurdaspur died before 24.7.2006 and information regarding his death was not received by the applicants. The applicants were under the impression that their counsel Sh.Viresh Nanda, had been pursuing the civil appeal but the same was dismissed in default on 24.7.2006 due to non-appearance of the counsel and parties. Moreover, as per list published and circulated by District Bar Association, the above referred appeal was reported to have been transferred from the Court of Sh.S.K.Arora the then Additional District Judge, Gurdaspur to the Court of Sh. J.S. Chugh Additional District Judge (Fast Track Court), Gurdaspur, but the file was not listed before the Court of Sh.J.S.Chugh, Additional District Judge (Fast Track Court), Gurdaspur on 24.7.2006. The absence of the applicants on 24.7.2006 is not intentional but due to the death of their counsel. After the death of Sh. Viresh Nanda, Advocate, there was no one to look after his work, therefore, now the applicants have come to know that the appeal has been dismissed due to want of prosecution. The applicants had collected brief from the house of Sh.Viresh Nanda, Advocate during summer vacation on 25.6.2007 and they came to know regarding the fate of the appeal on 25.6.2007. Therefore, an application, which was filed well within limitation from the date of knowledge i.e. 25.6.2007. Application was contested by filing the reply to application. Preliminary objections were taken that the application is not maintainable; application has been filed after a period of one year from the date of dismissal, without any application under Section 5 of the C.R. No.3266 of 2009 3 Limitation Act and the application is not maintainable, hence time barred. On merits, it has been alleged that the applicant was having full knowledge about the dismissal of the appeal must before filing the present application. Answering respondent filed an application for final decree in the learned lower Court on 8.3.2007 in which contents about the dismissal of the appeal mentioned and the notice was issued to the applicant for 28.4.2007 and the applicant was served on 20.3.2007 alongwith copy of application for final decree and on very day it can be presumed that the applicant has acquired knowledge about the dismissal of the appeal. Therefore, it is clear that the applicant appeared in the Court on 28.4.2007 along with his counsel which is established that the applicant is misleading the Court. Remaining averments are denied and controverted with prayer of the dismissal of the application. Following issues were framed:- 1. Whether the appeal is filed within limitation? OPA 2. Relief. The parties led their respective evidence on the aforesaid issues. After hearing the learned counsel for the parties, learned additional District Judge dismissed the application being time barred. Feeling dis-satisfied with the aforesaid order, the petitioner has preferred the present revision petition. I have heard learned counsel for the parties and have gone through the records of the case. C.R. No.3266 of 2009 4 It is settled law that nobody should be condemned unheard. However, it is also settled law that if a litigant is taking the Court proceedings as a ride, he should be discouraged. The Court comes into the rescue of a litigant who is vigilant towards his rights. The grounds taken by the petitioner is that his counsel has died and no intimation in this regard was sent to him. The appeal was dismissed in default on 24.7.2006. It is not disputed during the course of arguments that decree-holder filed an application for final decree on 8.3.2007 and the notice of the same was issued to the present petitioners, which was received by them on 20.3.2007 along with the copy of the application for final decree. The application for setting aside the order of dismissal was filed on 25.7.2007 i.e. after expiry of period of three months. No application for condonation of delay in filing the application has been filed. It cannot be believed that the petitioners came to know about the dismissal of appeal only on 25.6.2007 as alleged by them. The final decree is stated to have been prepared in the present case. So, in these circumstances, the present revision petition is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE May 10th , 2010 sv