Civil Revision No. 447 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 447 of 2004 Date of decision: 02.09.2009 Chhaju Ram ....Petitioner Versus Executive Engineer, PWD (B&R) Division, Narnaul and others ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Atul Yadav, Advocate, for the petitioner. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 16.9.2003, passed by the learned District Judge, Narnaul, vide which the application moved by the petitioner for setting aside the order dismissing the appeal in default, stands rejected. The suit filed by the plaintiff/petitioner was partly decreed. The petitioner preferred an appeal against the judgment and decree. The appeal was listed for hearing on 7.12.2001. It was the case of the petitioner, that on 6.12.2001, the petitioner fell ill and, therefore, could not present himself in Court. However, he had engaged a counsel to look after his interest. The counsel engaged by the petitioner also did not appear on the date fixed, and the appeal was ordered to be dismissed in default. It was the case of the petitioner, that after getting well he enquired about his case, when he was informed by the counsel that due Civil Revision No. 447 of 2004 -2- to the fact that the counsel remained busy in some complicated matter, he could not appear in the case. It was further case of the petitioner, that he was informed by the counsel, that now the application for restoration could only be moved after vacations, which was thereafter moved immediately on opening of the Court i.e. On 3.1.2002. The learned lower appellate Court was pleased to reject the application by recording as under: - “On the one hand, the appellant claims that he fell ill and became completely immobile and on the other hand, he asserts that under the impression that his counsel would got the adjournment in the appeal, he did not come. If his first version is be believed, he was made completely immobile. In that case, it cannot be said that he did come to the court under the impression that his counsel would get a date. If his second version is believed then he was in a position to come and stayed back at home under the impression that his counsel would get a date. So, the two parts of his plea are contradictory to each other. Even if this contradiction is ignored mere statement of Chhaju Ram that he was ill on 6.12.2001 and was not in a position to come to the court on 7.12.2001 cannot be believed. If he suffered from such serious illness, he must have taken treatment from some doctor and he should have supported his statement with medical evidence. The medical evidence to support his version is missing in this case.” The impugned order prima facie cannot be sustained. Once an arrangement was made by the petitioner by engaging a counsel to contest his case, there was noting wrong in his forming an impression, that his interest would be watched by his counsel and date would be taken. Civil Revision No. 447 of 2004 -3- Merely because the petitioner was immobile due to illness, could not lead to a conclusion that he was not capable of thinking or forming an impression, as projected by the learned lower appellate Court. The stand taken cannot be said to be contradictory, as held by the learned lower appellate Court. Application for setting aside ex parte order was also moved within the period of limitation, in spite of the fact that there was winter vacation in between. The very fact that the application was moved on 3.1.2002, shows that the petitioner was diligent and, therefore, was not to suffer for the fault on the part of the counsel, in not appearing before the Court. Pleadings and the evidence led by the petitioner before the learned trial Court, as noticed in the order, show that sufficient cause was made out for recalling the order. For the reasons stated above, the revision is allowed, the impugned order is set aside and the application moved by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure stands allowed. The learned lower appellate Court is now directed to decide the appeal on merits in accordance with law. Revision allowed. (Vinod K. Sharma) Judge September 02, 2009 R.S.