IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C. Revision No. 360/2002 Reserved on : 11.8.2010 Decided on:18.8. 2010. Bhau Ram. ...Petitioner. Versus Sita Devi and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Romesh Verma, Advocate. For the Respondents: Mr. G.C. Gupta, Sr. Advocate with Mr. Pawan K. Sharma, Advocate for respondent No.2. None for respondent No.1- a to 1-c. Justice Rajiv Sharma, Judge. This revision petition has been preferred by the petitioner- defendant (hereinafter referred to as ‘the defendant’ for convenience sake) against the order dated 14.8.2002 passed by the learned Sub Judge (4) Shimla in CMA No. 27/6 of 2001. Material facts necessary for the adjudication of this petition are that Sh. Attar Singh, predecessor-in-interest of respondents No.1-a to 1-c (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit against the defendant. The suit was fixed in the court of learned 1Whether the reporters of the local papers may be allowed to see the Judgment? Yes Sub Judge on 18.1.2001. It was dismissed on account of default for non-appearance of respondent-plaintiff on 23.2.2001. Plaintiff filed an application for restoration of suit on 14.3.2001. The application was contested. The learned Sub Judge allowed the application on 14.8.2002 and restored the suit subject to payment of Rs. 400/-, as costs. Hence, this revision petition against the order dated 14.8.2002. Mr. Romesh Verma has strenuously argued that order dated 14.8.2002 is not sustainable in the eyes of law. Mr. G.C. Gupta, learned Senior Counsel has supported the order dated 14.8.2002. I have heard the learned counsel for the parties and have perused the pleadings carefully. It is averred in the application preferred under order 9 rule 9 of the Code of Civil Procedure that the plaintiff alongwith his counsel was present before the Court and next date of hearing was given to the parties for announcing of the order in application, which was inadvertently noted by the learned counsel for the plaintiff as 14.3.2001 whereas actual date was 23.2.2001. It is in these circumstances, the suit was dismissed. It is further averred that the absence of the plaintiff was neither intentional nor willful. According to the defendant, the suit was listed for consideration on application under section 10 of the Code of Civil Procedure on 18.1.2001. It is further averred that the plaintiff has failed to explain sufficient cause for restoration of the suit. Mr. J.P. Sharma, Advocate appeared as witness. He deposed that inadvertently he noted the date 14.3.2001 instead of 23.2.2001. In his cross-examination, he admitted that the case was fixed for orders, however, in his cross-examination; he has admitted that the case was fixed for consideration on 18.1.2001. Defendant has also appeared as RW-1. He deposed that on 18.1.2001, plaintiff was present in the Court and the case was adjourned for 23.2.2001. He further deposed that on 23.2.2001 neither the plaintiff nor his counsel was present. The reasons assigned in the application supported by an affidavit and statement of Sh. J.P. Sharma, Advocate were sufficient to restore the suit dismissed on 23.2.2001. The possibility of the wrong date being noted by the Advocate as 14.3.2001 cannot be ruled out. Moreover, the plaintiff cannot be permitted to suffer due to negligence of his counsel. The Apex Court in Mahendra Rathore versus Omkar Singh and others, AIR 2002 SC 505 has held that in such matters a justice oriented approach and not a too technical or pedantic approach is expected to be adopted by Courts more so when the application sought to be restored for hearing was a claim case arising out of a motor accident. Their Lordships have further held that refusal on the part of Tribunal to restore the claim petition, as also on the part of High Court to show indulgence to the appellant has occasioned failure of justice. Their Lordships have held as under: “4. In the peculiar facts and circumstances of this case, in our opinion, the Motor Accident Claims Tribunal ought to have recalled the order of dismissal of claim petition, dated 27.1.1998 and restored the petition to its original status, condoning the delay in moving the application for restoration. The application was supported by medical certificate showing the applicant having fallen ill on the date of hearing. The applicant’s own statement on oath remained uncontroverted. In such matters a justice oriented approach and not a too technical or pedantic approach is expected to be adopted by Courts more so when the application sought to be restored for hearing was a claim case arising out of a motor accident. Refusal on the part of Tribunal to restore the claim petition, as also on the part of High Court to show indulgence to the appellant has occasioned failure of justice. The Tribunal could have put the parties to terms to meet the ends of justice but should not have refused to restore the claim petition. We, accordingly, allow these appeals and set aside the impugned orders of the High Court as also of the Motor Accident Claims Tribunal dated 27.1.1998. The claim petition is restored to its original number and remanded to the Tribunal for its trial on merits. The proceedings hereafter shall commence from the stage at which the same were on 27th January, 1998 when the claim petition was dismissed in default of appearance. The Tribunal shall expeditiously dispose of the petition.” Their Lordships of the Hon’ble Supreme Court in Sahara India and others versus M.C. Aggarwal Huf, (2007) 11 SCC 800 in a case where non-appearance was due to wrong noting of date by the counsel have held that the plaintiff was prejudiced and the same was to be meted out by costs which was fixed at Rs. 20,000/-. Their Lordships have held as under: “9. It is also proper that the appellants should pay cost to the respondent. Even if the reason for non-appearance is accepted to be correct, the plaintiff was certainly prejudiced. Merely because the learned counsel appearing for the defendants did not take proper care and caution that cannot be a ground to loose sight of the prejudice caused to the plaintiff-respondent. The same has to be meted out by costs which we fix at Rs.20,000/-. The amount shall be paid within 10 days from today. A receipt shall be filed before the trial Court immediately thereafter so that our directions for disposal within three months can be duly complied with.” In the present case also, the petitioner-defendant has also been prejudiced and was required to be compensated by awarding adequate costs. Accordingly, in view of the observations made hereinabove, the revision petition is dismissed with a slight modification that the plaintiff shall pay costs of Rs. 2000/- to the defendant instead of Rs. 400/- as ordered by the learned Sub Judge. The suit shall commence from the stage it was restored by the learned Sub Judge (4), Shimla, i.e. 14.8.2002. (Rajiv Sharma), Judge. 18.8.2010. *awasthi*