IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 145 of 2011 Decided on: 14.07.2011 Krishan Pal Singh …Petitioner. Versus Hari Pal Singh & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Sanjeev Kuthiala, Advocate. For the respondents: Mr. K.D. Sood, Advocate, for respondents No. 1 and 2. Deepak Gupta, J. (Oral) This petition is directed against the judgment dated 10.01.2011, passed by learned Additional District Judge, Una, whereby he dismissed the appeal filed by the petitioner (hereinafter referred to as 'the plaintiff') and upheld the order of the learned trial Court rejecting the application filed by the plaintiff for setting aside the order whereby his suit had been dismissed in default. 2. Briefly stated, the facts of the case are that petitioner had filed a suit against his mother and brother 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- challenging the gift deed executed by the mother in favour of the brother. 3. Issues, in the suit, were framed on 9th December, 2002 and the matter was listed for plaintiff's evidence on 10th March, 2003. On this date, the Presiding Officer was on leave and, therefore, the case was adjourned to 7th May, 2003 for proper orders. The case was then adjourned to 15.09.2003 for evidence of the plaintiff. On this date also, neither any evidence was present nor steps were taken for summoning the witnesses. A request for adjournment was made, which was allowed and the matter was adjourned to 08.12.2003. 4. On the next date, i.e. 08.12.2003, again PWs were not present and request for adjournment made on behalf of the plaintiff was allowed subject to payment of ` 300/- as costs. Admittedly, these costs have not been paid. The case was adjourned to 24.02.2004, but on this date, the Presiding Officer stood transferred and, therefore, the case was adjourned to 14.05.2004 for proper orders. On this date, learned trial Court fixed the case for 23.09.2004 for evidence of the plaintiff. On 23.09.2004 neither plaintiff was present nor any steps were taken for summoning the witnesses. The case was dismissed in default on this date. 5. Thereafter, an application for restoration of the suit dismissed in default was filed in the Court on 30th March, 2005 through the counsel representing the plaintiff in the suit. In this -: 3 :- application, the only ground given for non-appearance was that the plaintiff could not appear before the Court on 23.09.2004 as he had gone to Delhi in connection with payment of his dues and that his counsel was busy in some other Court. 6. This application was opposed and the parties were directed to lead evidence. The plaintiff chose to examine only himself. In examination-in-chief, he again reiterated what had been stated in the application, but, importantly also stated in examination-in-chief itself that he came back to his village on 19.02.2005 and then came to know from his counsel that his case has been dismissed in default. In cross-examination, he admitted that number of opportunities had been given to him to lead evidence and that even the costs have not been paid. Most importantly, now he changed his version and according to him, on 23.09.2004 when the suit was dismissed in default, he was in Delhi, but after that he had come back to his native village. To cover up the lapse, thereafter, he came up with a fresh plea that he had suffered from Hepatitis B and, therefore, for five-six months he remained at home. When cross-examined further, he stated that within two-three months of the suit being dismissed in default, he had telephoned his counsel and was informed by his counsel that the suit had been dismissed in default. The counsel did not appear in the witness box. 7. Both the Courts were right in holding that the explanation given by the plaintiff was false on the face of it. In -: 4 :- the application, he had stated that he came to know about the dismissal in default only on 19.02.2005, but there was no explanation what was he doing from as to 19.02.2005 till 30.03.2005. If the application is read, it appears that the plaintiff came back to his village on 19.02.2005 but when cross- examined, he admitted that he came back soon after the case was dismissed in default and remained unwell. This fact of the plaintiff being unwell was not pleaded and not an iota of evidence has been led to show that he, in fact, was unwell and could not attend the Court. 8. This Court is not oblivious of the fact that on 23.02.2004, the plaintiff was bound to lead his evidence. Even if the plaintiff was not present, what prevented the plaintiff from summoning his witnesses prior to that date. This could have shown the bona fides of the plaintiff. There is a reprehensible practice being followed by certain counsel that when a last opportunity is given, they prefer to have the case either dismissed in default or proceeded against ex-parte instead of complying with the orders of the Court. 9. This Court has already expressed its clear cut opinion that by getting a suit dismissed in default or getting the party proceeded against ex-parte, the party cannot get over the previous order of the Court. If the evidence of the plaintiff was not present and closed by the order of the Court, then also the suit would have been dismissed. This order cannot be avoided -: 5 :- by getting the suit dismissed in default and then asking for restoration of the same. 10. In view of the above discussion, I find no merit in the case, which is accordingly dismissed. No costs. (Deepak Gupta) Judge July 14, 2011 (rajni)