Civiil Revision No.5432 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civiil Revision No.5432 of 2006 (O&M) Date of Decision 23.04.2009 Ruldu Singh and another ......Petitioners VERSUS Mohinder Kaur and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr.Chanan Singh, Advocate, for the petitioners. Mr.Ashok Singla, Advocate, for the respondents. ***** RAKESH KUMAR GARG, J(ORAL): Civil Misc.No.4091-CII of 2008 This is an application under Order 6 Rule 17 C.P.C. read with Section 151 C.P.C. for permission to amend the aforesaid revision petition so as to enable the petitioners to claim the relief of setting aside the orders dated 04.09.2002 (Annexure P-8) and Order dated 02.11.2001 (Annexure P- 9). Learned counsel for the non-applicants/respondents has no objection if this application is allowed. Thus, the application is allowed and the amended revision petition is taken on record. Civiil Revision No.5432 of 2006 As per the averments, made in this revision petition, Sh.Sital Singh (since deceased) father of the petitioner, was the owner in possession of the land in dispute. Respondents filed Civil Suit No.538 of 29.07.1995 Civiil Revision No.5432 of 2006 (O&M) 2 against Sh.Sital Singh, claiming a decree for declaration that they have become the exclusive owner in possession in equal share of whole of the said land. The claim made by the respondents was conceded by said Sital Singh and a decree was passed in favour of respondents and against Sh.Sital Singh on 23.12.1995 The petitioners, after coming to know about the said collusive decree dated 23.12.1995, filed Civil Suit No.213 dated 03.09.1998 challenging the aforesaid decree against their father Sh.Sital Singh and both the respondents. The suit was fixed for examination of remaining evidence of the petitioners on 02.11.2001 and the same was dismissed in default in the absence of both the parties under Order 9 Rule 3 C.P.C. by Civil Judge (Junior Division), Barnala vide impugned order dated 02.11.2001 (Annexure P-9). The petitioners filed an application dated 20.11.2001 for setting aside the said order and for restoration of their suit which was dismissed in default. However, the said application was also dismissed in default on 04.09.2002 (Annexure P-8) under Order 9 Rule 2 C.P.C., for want of prosecution i.e. for non-filing of the process fee. The petitioners moved another application on 05.09.2002 for restoration of their application dated 20.11.2001 and to get the same decided on merits by setting aside the order dated 04.09.2002 vide which the suit of the petitioners was dismissed in default. The trial Court, vide impugned order dated 20.09.2005 (Annexure P-6) dismissed the application filed by the petitioners. It is also relevant to mention that the petitioners filed an appeal against the aforesaid order which was dismissed vide order dated 15.06.2006 (Annexure P-7) by the Additional District Judge, Barnala, holding the same to be not maintainable. Civiil Revision No.5432 of 2006 (O&M) 3 The present revision petition has been filed by the petitioners challenging the orders dated 02.11.2001 (Annexure P9), 04.09.2002 (Annexure P-8), 20.09.2005 (Annexure P-6), whereby the suit of the petitioners has been dismissed in default and even the restoration application has been dismissed and application filed by the petitioners for restoration of the same has also been dismissed. Challenging the aforesaid orders, learned counsel for the petitioners has vehemently argued that the impugned orders are liable to be set aside as the suit before the trial Court was at preliminary stage when it was dismissed and a very heavy stake was involved in the suit. Thus there was no question of petitioners lacking in bonafides or deliberate inaction or negligence in pursuing the case. They had engaged a counsel with substantial standing, thus, the negligence if any of their counsel or his clerk may not justify the basis of non-suiting the petitioners. Moreover, in civil litigation, costs are panacea for all ills and the parties must be given a fair and reasonable opportunity to advance their claim unless there is a manifest and delibrate lack of bonafides with intent to harass the other side which is not the case in hand. Learned counsel for the petitioners has also relied upon a judgment of Hon'ble Supreme Court in the case of International Airports Authority of India v. M.L.Dalmia & Co. Ltd. JT 2002 (2) SC 172 . In the end, learned counsel for the petitioners has stated that the petitioners shall be bound by any terms and conditions as may be imposed by this Court. On the other hand, learned counsel for the respondents has supported the impugned orders and has stated that there was a gross negligence of the petitioners in pursuing their case and, therefore, they are Civiil Revision No.5432 of 2006 (O&M) 4 not entitled to the relief claimed. I have heard learned counsel for the parties. The Hon'ble Supreme Court of India in the case of State of Punjab and another v. Shamlal Murari and another, (1976) 1 Supreme Court Cases 719 observed as under:- “Processual law is not to be tyrant but a servant not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, the Court should not enthrone a regulatory requirement into a dominant desideratum. Afterall courts are to do justice, not to wreck this end product technicalities. So even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time.” Similarly in International Airports Authority of India (Supra), the Hon'ble Apex Court observed as under:- “Having perused the contents of the application for restoration supported by affidavit, we find that the appellant did try to explain the absence on 10.07.2001 but the explanation so offered did not appeal as plausible to the High Court, specially in view of the earlier conduct of the appellant which weighed heavily with the High Court resulting in denial of indulgence Civiil Revision No.5432 of 2006 (O&M) 5 being shown to the appellant. Looking at the stakes involved and keeping in view the weighty consideration that so far as practicable, a litigant ought not to be denied a hearing on merits, we are inclined. In the facts and circumstances of this case, to allow the appellant one more opportunity of hearing in the appeal on merits by restoring the same on the file of the High Court, but subject to terms.” Keeping in view the aforesaid observations of the Hon'ble Supreme Court of India and facts and circumstances of the case, I am of the view that the impugned orders deserve to be set aside and the respondents can be well compensated by imposing heavy costs upon the petitioners. It is well settled that the parties must be given a fair and reasonable opportunity to advance their claim or to contest the same unless there is a manifest and delibrate lack of bonafides. The subject matter of the suit is huge chunk of land. Thus, a very heavy stake being involved, there was no question of petitioners lacking in bonafides or deliberate inaction or negligence in pursuing the case. Even from the record, it is clearly established that application under Order 9 Rule 4 C.P.C., for restoration of the case was filed immediately on 20.11.2001 and thereafter when this application for restoration was dismissed on 04.09.2002, the petitioners had moved application for restoration of the aforesaid application on 05.09.2002 itself. Thus, I find sufficient grounds to accept this revision petition and set aside the impugned orders. Ordered accordingly. The impugned orders Annexures P-6, P-8 and P-9 are hereby set aside. It is also relevant to mention at this stage that Annexures P-7 vide which appeal filed by the petitioners against the order Annexure P-6 was dismissed is of no Civiil Revision No.5432 of 2006 (O&M) 6 consequence as undisputedly the appeal before the Additional District Judge, Barnala, against the order Annexure P-6 was not maintainable. Thus, this revision petition is allowed, subject to payment of Rs.10,000/- as costs. The parties are directed to appear before the trial Court on 25.05.2009. April 23, 2009 (RAKESH KUMAR GARG) mamta-II JUDGE Civiil Revision No.5432 of 2006 (O&M) 7 To The Registrar, Punjab & Haryana High Court, Chandigarh. Sub: Station leave. Sir, With due respect it is submitted that I have to go to my native home town to meet my parents and relatives. Kindly grant me station leave w.e.f. 10.03.2009 (after duty hours) till 16.03.2009 (before duty hours) (11.03.2009 till 15.03.2009 being holidays). During this period, my address is Village Garhi Gujran, Distt. Karnal. Thanking you, Yours faithfully, (Gurmeet) Peon Civiil Revision No.5432 of 2006 (O&M) 8 To The Registrar General, Punjab & Haryana High Court, Chandigarh. Sub: For providing Internet Connections. Sir, With due respect, it is submitted that we the following Judgment Writers/Stenographers have been shifted from Rules Branch (Room No.15) to the newly built Garage. We have been regularly attending Hon'ble Courts as 3rd additional hands or from the pool. We have not provided with any internet connection due to which judgment uploading work is suffering. It is, therefore, requested that new internet points may kindly be installed and internet connection to each one of us may kindly be provided so as to avoid any inconvenience to the Hon'ble Courts. Thanking you, Yours faithfully, Dated:09.03.2009