Civil Revision No.5298 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5298 of 2008 Date of decision: 4.2.2009 Dharampal and another ...Petitioners Versus Balwant Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Rajinder Goyal, Advocate for the petitioners. Mr. Arun Jain, Senior Advocate with Mr. Ajay Kaushik, Advocate for the respondents. ***** S.D.ANAND, J. The facts beyond the pale of controversy are as under:- A civil suit filed by the petitioners before the Trial Court was partly decreed by the then learned Senior Sub Judge, Kaithal, vide judgment and decree dated 30.8.1994. In first appeal, the plaintiffs-petitioners tasted success in toto in terms of judgment and decree dated 13.1.1999, passed by the then learned Additional District Judge, Kaithal. In Regular Second Appeal (No.1038 of 1999), this Court set aside the judgments and decree recorded by the learned Trial Court and First Appellate Court and remanded the case to the Trial court for disposal of a plea under Order 6 Rule 17 C.P.C. which the plaintiffs were inclined to file before it. The parties, through their learned counsel, were directed to Civil Revision No.5298 of 2008 -2- **** appear before the learned Trial Court on 3.9.1999. None appeared on behalf of the parties before the learned Trial Court on that date. It was only on 1.9.2001 that the plaintiffs- petitioners filed a plea before the learned Trial Court for taking up the relevant file for proceeding further in the matter in terms of order dated 11.8.1999 passed by this Court in R.S.A. No.1038 of 1999. The plea, urged in support thereof, was that the plaintiffs-petitioners could not appear in the Court on the date fixed by this Court because the original trial court file had not reached the office of the Trial Court and had instead been directly sent (by the Registry of this Court) to the Record Room. The defendants-respondents resisted the plea by averring that the suit should be deemed to have been dismissed on 3.9.1999 itself. In the context, the premise averred by the plaintiffs-petitioners to explain their absence was contested by the defendants-respondents who pleaded that the Trial Court record had not at all been received by the Registry of this Court and there was, thus, no question of the records having been sent by the Registry of this court to the Record Room directly. On that premise, the application filed by the plaintiffs-petitioners was averred to be time barred. The learned Trial Court upheld the plea raised on behalf of the defendants-respondents and held that on account of non-appearance of the plaintiffs-petitioners before the Trial Court on 3.9.1999 “their suit shall be deemed to be dismissed on 3.9.1999 and the suit cannot be treated to be continued for an indefinite time.” The learned counsel for the plaintiffs-petitioners argues that the theory of deemed dismissal is invalid in the circumstances of the case when neither side appeared before the learned Trial Court on 3.9.1999. The learned Senior Counsel, appearing on behalf of the defendants- Civil Revision No.5298 of 2008 -3- **** respondents, argues that only course presently open before the plaintiffs- petitioners is to ask for extension of time from this Court for appearing before the learned Trial Court. It is argued that the order on point of deemed dismissal is perfectly valid. The correctness or otherwise of the contradictory stances taken up by the parties with regard to receipt of otherwise of the trial court record by the Record Room notwithstanding, it is apparent that case had not been taken up by the Trial Court on 3.9.1999. Whether the Trial Court record had been initially despatched to the Registry of this Court or not or whether the record had been directly sent by the Registry of this Court to the Record Room or not, it was incumbent upon the learned Trial Court to take up the matter on 3.9.1999 and to pass whatever order, it deemed appropriate in the absence of the parties to the cause. Concededly, the Trial Court did not take up the file on 3.9.1999. In the circumstances of the case, I would discard the theory of deemed dismissal of the suit. In the peculiar facts and circumstances of the case, the petition shall stand allowed. The impugned order dated 13.6.2008 shall stand set aside. The matter shall be listed before the learned Trial Court on 20.2.2009. On that date itself, the plea under Order 6 Rule 17 C.P.C. shall be presented by the plaintiffs-petitioners which (plea) shall be disposed of by the learned Trial Court within one month from thereof. The defendants-respondents shall, ofcourse, be afforded an opportunity to file a counter thereto in the meantime. February 04, 2009 (S.D.Anand) Pka Judge