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Govindram Vs. Chhotu Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 46/83
Judge
Reported in1983WLN(UC)250
AppellantGovindram
RespondentChhotu Khan and anr.
DispositionPetition Allowed
Excerpt:
.....debarred from one of the remedies, in these circumstances, in my opinion, the order of the learned civil judge, jaisalmer, dated 25-9-82 deserves to be set aside.;revision accepted - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the..........the order of the learned civil petition dated 25.9 82 dismissing the petitioner's application for judge restoration of an earlier application for restoration of an application under section 151 cpc. a decree on the basis of the alleged compromiser decree which is still had been passed in a suit against the petitione govind ram on 5.5.79. he filed an appeal against that said to be pending. on 15.11.79, he moved an application before the learned civil judge under section 151 cpc for setting aside that decree. but that application was dismissed in default on 15.4.80. he applied for restoration of this application but this application was also dismissed in default on 23.10.81. it is against this order that the present revision has been filed.2. i have heard the learned counsel for the.....
Judgment:

K.S. Lodha J.

1. This revision is directed against the order of the learned Civil petition dated 25.9 82 dismissing the petitioner's application for Judge restoration of an earlier application for restoration of an application Under Section 151 CPC. A decree on the basis of the alleged compromiser decree which is still had been passed in a suit against the petitione Govind Ram on 5.5.79. He filed an appeal against that said to be pending. On 15.11.79, he moved an application before the learned Civil Judge Under Section 151 CPC for setting aside that decree. But that application was dismissed in default on 15.4.80. He applied for restoration of this application but this application was also dismissed in default on 23.10.81. It is against this order that the present revision has been filed.

2. I have heard the learned Counsel for the parties. Although the case was fixed up for admission 'the parties' learned Counsel have agreed that revision may be finally disposed of.

3. The learned Civil Judge has dismissed the application for restoration on the ground that on the earlier occasions also, the petitioner had absented himself and his application had been dismissed in default and, therefore, it appeared that he was habitual absentee. Unfortunately, the Civil Judge has not considered the fact whether on 23.10.81, there was sufficient cause for the petitioner's absence when the case was taken up for hearing. The petitioner's case was that he and his counsel had been waiting for the case to be called since 11 A.M. upto 4.45 P M. When the case was not called, the petitioner enquired from the court at 4.45 P.M. as to what had happened to his matter and was informed that his application in had been dismissed in default. Thereupon, he filed the application for restoration on the same day at 5.10 P.M. relating the above facts The application was supported by the petitioners affidavit as also the affidavit of his counsel. A reply was, of course, filed denying these facts but no affidavit was filed to controvert the allegations of the application. As already stated above, the learned court also did not consider these affidavits and has merely observed that from the previous conduct, the petitioner appears to be a habitual absentee. In my opinion, the previous conduct was not very much relevant. What was to be decided was whether there was sufficient cause for the absence of the petitioner at the time this particular application was called for hearing. Now when the petitioner and his learned Advocate have stated on oath that the case was not called and that they had been waiting for this case right upto 4.45 PM and the application for restoration was made at 5.10 PM on the very day, it does stand to reason that the statement of facts in the affidavit of the petitioner and his learned Counsel could not have been lightly rejected specially when there was no counter affidavit. It, therefore, appears that on 23.10.81 there was sufficient cause for the petitioner's absence.

4. The learned counsel for the non-petitioners however, urged that this application for restoration relates to an application Under Section 151 CPC and a decree passed against the petitioner cannot be set aside by recourse to Section 151 CPC and, therefore, the application for restoration even if wrongly rejected does not deserve to be restored by recourse to the revisional jurisdiction of this court. It may at once be stated that the merits of the application Under Section 151 CPC cannot and need not be gone into in these proceedings. All that the court has to presently consider is whether the restoration application bad rightly been rejected or not. It was also urged that an appeal against the decree passed on 5.5.79 is already pending and, therefore, if the restoration application is not accepted, the petitioner would not suffer any irreparable injury and, therefore, also interference in revision with the order of the court below is not called for I am not impressed by this argument either. If a person has more than one remedies, it does not mean that he should be confined to one alone. The dismissal of the application Under Section 151 in default, is certainly likely to cause him irreparable injury because he would be debarred from one of the remedies. In these circumstances, in my opinion, the order of the learned Civil Judge, Jaisalmer, dated 25.9.82 deserves to be set aside.

5. I, therefore, accept this revision, set aside, the order of the learned Civil Judge, Jaisalmer, dated 25.9.82, accept the petitioner's application dated 23. 10.81 and restore the application dismissed in default on 23.10.81. The parties are directed to appear before the learned Civil Judge Jaisalmer, on


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