SB CIVIL WRIT PETITION NO.8563/2004 (Fattumal Vs. Vinodi Lal and ors.) Date of Order :: 21-02-2008 HON'BLE MR. JUSTICE P.S. ASOPA Ms. Sweety for Mr.Ashok Gaur, for the petitioner. Dr.A.S.Khangarot, Addl.G.A. for respondent no.2. None present, for respondent no.1. With the consent of the parties, the matter was heard finally. No one appears for respondent no.1 despite service. By this writ petition, the petitioner has prayed for quashing the impugned order dated 8.4.2003 passed by the Sub-Divisional Officer, Kishangarhbas in civil suit no.74/2004 whereby the application filed by the respondent under O.9 R.3 & 4 read with Sec.151 CPC was allowed. Briefly stated the facts of the case are that a suit for permanent injunction was filed by the respondent against the petitioner in the court of Sub- Divisional Officer, Kishangarhbas. On 31.3.2003, the plaintiff-respondent did not appear in the court and the suit was dismissed in default. On 8.4.2003, an application under O.9 R.3 & 4 read with Sec.151 CPC was filed by the respondents with supplying copy of the application to the petitioner. No notice was issued by the court below to the petitioner. Thereafter the said suit was restored on 8.4.2003 and the case was fixed for framing the issues on 25.6.03. The counsel for the petitioner submits that without any intimation or notice to the petitioner, the matter was taken up for restoration. On 28.8.04, evidence of the respondent- plaintiff was recorded in absence of the petitioner without giving intimation and opportunity of cross- examination. On 3.9.04, the petitioner came to know that the suit has been restored. Thereafter the petitioner has filed an application for staying the proceedings and to give an opportunity to contest the suit from the stagte when it was dismissed in default. On 4.1.2005, the case was fixed for recording the evidence of the petitioner without giving opportunity of cross-examination of the respondent's evidence recorded in absence of the petitioner. The counsel for the petitioner submits that no consent was given for restoration of the suit. In fact neither the petitioner nor his counsel was present on the date when suit was restored nor any notice was given to them and without intimating them, evidence of the respondent was recorded. However it is prayed that recording of evidence of plaintiff-respondent may be declared bad in law and petitioner may be given opportunity of cross-examination. No one appears for respondent no.1 despite service. The counsel appearing for the respondent no.2 submits that the court below has rightly allowed the restoration application and no notice was required to be issued to the petitioner. As regards the cross- examination, the counsel for the respondent no.2 submits that once the suit is restored and since the petitioner has not participated in the proceedings before the court below, he is not entitled for recalling the matter for the purpose of cross- examination. I have gone through the record of the case and further considered the rival submissions of the parties. As regards the restoration, I am not inclined to quash the order of restoration. However, the subsequent non-participation of the petitioner in the proceedings appears to be bonafide. Accordingly, the writ petition is partly allowed. It is directed to the trial court i.e. S.D.O., Kishangarhbas that in the interest of justice to recall the witnesses and provide an opportunity of cross- examination to the petitioner. (P.S. ASOPA),J. Sandeep/- s/9