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Gurdial Kaur Vs. Asso and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 740 of 1970
Judge
Reported inAIR1972P& H64
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 9
AppellantGurdial Kaur
RespondentAsso and ors.
Appellant Advocate D.S. Nehra, Adv.
Respondent Advocate Harbhagwan Singh, Adv.
Excerpt:
.....by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - she had very poor eye-sight and was hard of hearing. she is alleged to be an old lady of about 70 years of age and it is said that she had not only poor eye-sight but was stone-deaf. similarly, if her counsel had advised her to bring those witnesses, who had to be produced on the date of hearing in order to prove sufficient cause, she might have been..........about rs.1,50,000/-. these are also considerations, which should weigh with the courts when dealing with applications of this kind. in the circumstances of this case, therefore, i am of the opinion that the courts below were in error in dismissing the application for restoration of the suit dismissed in default. 7. i would, therefore, accept this revision petition, set aside the orders of the courts below and restore the suit on payment of rs.100/- as costs to the defendants. there will, however, be no order as to costs in this court. 8. revision allowed.
Judgment:
ORDER

1. This is a plaintiff's revision petition against the decision of the learned Additional District Judge, Faridkot, confirming on appeal the order of the trial Judge rejecting her application for setting aside the order dismissing her suit in default.

2. One Bhag Singh was the owner of about 358 Kanals of land, situate in village Gobindgarh, District Bhatinda. After his death, according to Gurdial Kaur, plaintiff, who is his daughter, she and the deceased's widow Mst. Asso became the owners of his estate. On 27th January, 1966, Asso sold 90 Kanals 5 Marlas of land to Gurbachan Singh and five others for Rs.50,000/-. Thereupon, Gurdial Kaur brought a suit for possession of her one half share in the entire holding of Bhag Singh. This suit was fixed for plaintiff's evidence on 20th April, 1968. On that day, she did not appear, but her counsel did so and submitted that he had no instructions from his client. On this the trial Judge dismissed the suit in default. On 4th May, 1968, an application under O. 9, R. 9, Code of Civil Procedure, was filed by Gurdial Kaur for the restoration of the suit. It was alleged by her that she was an old lady of more than 70 years of age. She had very poor eye-sight and was hard of hearing. On 20th April, 1968, she had boarded the bus for reaching Faridkot, where her case was being tried but unfortunately on the way the bus went out of order and since no other bus was available, she reached the Court about an hour or one and a half hour late. She then learnt that her suit had been dismissed in default. She had at that time no money with her to move an application for the restoration of the suit and pay the additional fee of her counsel. She was further informed that the application for the restoration of the suit could be filed within 30 days. It was stated in the application that the delay on her part was not wilful and her absence from the Court was beyond her control.

3. This application was contested both by Asso and her vendees. The trial Judge dismissed the same holding that the plaintiff was unable to show that there was sufficient cause for the restoration of the suit. It was, however, found by the learned Judge that the said application had been filed within limitation.

4. When the matter went in appeal before the learned Additional District Judge, he confirmed both these findings. Against this order, the present revision petition has been filed by Gurdial Kaur.

5. It has bee observed by the learned Additional District Judge that the petitioner should have filed this application on the very day when her suit had been dismissed in default, in case she had reached the Court late on that day as alleged by her. It has also been said that if she had brought the witnesses with her for being examined in Court, she should have produced them in evidence. Further, if she had really contacted her lawyer, then he or at least his Clerk should have appeared in the witness-box in support of her case. It has also been said that she was not right when she stated that there was no money with her for filing the restoration application on that very day, for in her evidence she had deposed to the contrary.

6. I have gone through her statement and the evidence of the witnesses produced by her. After considering the same, I am convinced that she was telling the truth. She is alleged to be an old lady of about 70 years of age and it is said that she had not only poor eye-sight but was stone-deaf. It is true that if she had reached the Court on 20th April, 1968, the date fixed in the case, she could have moved an application for the restoration of the suit on that very day. But that depends on the advice that she got from her lawyer. If the lawyer told her that the application could be filed within 30 days and she acted on that advice, she is not to be blamed for that. Similarly, if her counsel had advised her to bring those witnesses, who had to be produced on the date of hearing in order to prove sufficient cause, she might have been able to produce them in support of her application as well. But these are matters, which depend on the legal advice that she got from her counsel. If she was not told to bring those witnesses, she should not be made to suffer on that account. It is also to be noted that lawyers and their clerks do not generally like to give evidence even in favour of their clients for obvious reasons. I have already said that I was greatly impressed with her statement in Court and have no reason to disbelieve her. This suit involves a very large property and I am told that the value of the land in dispute today is about Rs.1,50,000/-. These are also considerations, which should weigh with the Courts when dealing with applications of this kind. In the circumstances of this case, therefore, I am of the opinion that the Courts below were in error in dismissing the application for restoration of the suit dismissed in default.

7. I would, therefore, accept this revision petition, set aside the orders of the Courts below and restore the suit on payment of Rs.100/- as costs to the defendants. There will, however, be no order as to costs in this Court.

8. Revision allowed.


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