Civil Revision No.4487 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4487 of 2011 Date of decision: 03.11.2011 Prem and another ... Petitioners Versus Sat Pal and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. R.C.Sharma, Advocate for the petitioners. Mr. Vijay Lath, Advocate for respondent No.1. Ajay Kumar Mittal,J. 1. The petitioners have approached this Court impugning order dated 14.5.2011 passed by the appellate court whereby an application under Order 41 Rule 19 read with section 151 of the Civil Procedure Code (in short, ‘the Code”) for restoration of the appeal which was dismissed in default on 14.5.1998, had been rejected. 2. Brief facts may be noticed. The predecessor-in-interest of petitioners filed a suit for declaration with consequential relief of permanent injunction to the effect that they were owners in possession of land measuring 37 kanals, 14 marlas and the revenue entries were liable to be corrected accordingly. The suit was contested by respondent Nos. 1 and 2 by filing written statement. They also 1 Civil Revision No.4487 of 2011 filed their counter claim and prayed for decree for possession of the suit land. Replication was filed by the petitioners denying the averments made in the written statement as well as in the counter claim. The trial court vide judgment dated 17.11.1995 dismissed the suit and decreed the counter claim filed by the respondents. Aggrieved by the said judgment, the father of the petitioners filed an appeal which was dismissed by the appellate Court in default on 14.5.1998. Thereafter, an application for restoration of the appeal was filed on 12.6.1998 under Order 41 Rule 2 read with section 151 of the Code. The said application was dismissed as withdrawn on 18.7.2001 as wrong provision was mentioned therein. Thereafter, correct application under Order 41 Rule 19 read with section 151 of the Code for restoration of the appeal was filed on 30.7.2001. Vide order dated 14.5.2011, the appellate Court dismissed the application for restoration on the ground of delay. Hence the present revision petition. 3. Learned counsel for the petitioners submitted that appeal was dismissed in default on 14.5.1998 and an application for restoration of the same was filed on 12.6.1998 though the provision mentioned therein was Order 41 Rule 2 of the Code. He submitted that the said application was withdrawn on 18.7.2001 and an application for restoration of the appeal was filed immediately thereafter. According to the learned counsel, if the period during which the application wrongly filed under Order 41 Rule 2 of the Code was excluded, application for restoration was within limitation. It was also submitted that the appeal was filed by the father of both the petitioners and after their death it was very difficult for the 2 Civil Revision No.4487 of 2011 petitioners to prove regarding their sickness on 14.5.1998 when the appeal was dismissed in default. Moreover, respondent No.1 during his cross-examination had not raised any objection for the restoration of the appeal and for deciding the same on merits and in such a situation, the appellate Court should have restored the appeal and decided it on merits. Lastly, it was urged that the Court in order to do substantial justice should have allowed the application for restoration and the respondents could be compensated by way of costs. 4. On the other hand, opposing the prayer made by learned counsel for the petitioners, learned counsel for respondent No.1 besides supporting the order passed by the appellate Court dismissing the application for restoration, submitted that the petitioners have after the decision by the trial Court against them, been unduly benefitted by getting the case dismissed in default and then filing the application for restoration. Prayer for dismissal of the revision petition was made. 5. After hearing learned counsel for the parties and perusing the record, I find that in the interest of justice, the appeal which was dismissed in default on 14.5.1998 was required to be restored and adjudicated on merits instead of taking time from 1998 till 2011 for deciding the application for restoration alone. 6. As noticed from the facts, the appeal was dismissed in default on 14.5.1998 and the application for restoration was filed on 12.6.1998. No doubt, the said application was filed under Order 41 Rule 2 of the Code and it was withdrawn on 18.6.2001 and a correct application under Order 41 Rule 19 of the Code was filed immediately thereafter for restoration of the appeal. Rules of 3 Civil Revision No.4487 of 2011 procedure are handmaid of justice and ordinarily the Court should not throw out a person where due to certain circumstances, an unintentional error has crept in on his/her part and the same is not malafide. 7. In the present case, after examining the facts noticed above, it cannot be concluded that the petitioners were negligent in pursuing the litigation or that their action was malafide or intentional in delaying the decision of the appeal. Accordingly, the revision petition is allowed and the order dated 14.5.2011 dismissing the application for restoration of the appeal is set aside. This shall be subject to payment of Rs.5000/- as costs which shall be paid to contesting respondent No.1. In the facts and circumstances, the appellate Court is directed to decide the appeal on merits within six months from the date of receipt of a certified copy of this order. November 03, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4