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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SANJAY KUMAR, J.
M/s Goyal Traders - Appellant
Versus
M/s Brahamputra Processors Private Limited - Respondent
Civil Revision No. 7849 of 2017
Decided On : 05-11-2019
Delay Condonation - Civil Suit - Order 9 Rule 8 CPC - Section 148 CPC - [Order 9 Rule 8 CPC, Section 148 CPC] - The court discussed the provisions of Order 9 Rule 8 CPC and Section 148 CPC in the context of condonation of delay in filing restoration applications. It emphasized the importance of examining the plaintiff's conduct and diligence, and highlighted that a party cannot be penalized for the mistake of its counsel. The court also emphasized the need for adjudicating claims on merits rather than technicalities, while also imposing consequences for lack of diligence.
Fact of the Case:
The plaintiff filed a suit for recovery of a sum of money, which was dismissed for default. Subsequent applications for restoration were also dismissed by the trial Court.
Finding of the Court:
The court found that the plaintiff was diligent in prosecuting the suit prior to its dismissal for default, and that the trial Court erred in not considering the plaintiff's conduct and the reasons for the delay. It held that the plaintiff should be entitled to have its claim examined on merits, but imposed consequences for lack of diligence.
Issues: Delay Condonation, Restoration of Suit, Plaintiff's Conduct and Diligence
Ratio Decidendi: The plaintiff should be entitled to have its claim examined on merits, and a party cannot be penalized for the mistake of its counsel. Lack of diligence should have consequences, but claims should be adjudicated on merits rather than technicalities.
Final Decision: The court set aside the order under revision, allowed the condone delay application and restoration applications, and directed the trial Court to resume the suit proceedings upon proof of payment of costs.
JUDGMENT :
SANJAY KUMAR, J.
1. This civil revision, under Article 227 of the Constitution, arises out of the order dated 30.05.2017 passed by the learned Civil Judge (Junior Division), Amritsar (hereinafter, 'the trial Court'), in Case No.20/2012/2016. By the said order, the trial Court refused to condone the delay in the filing of the application for restoration of the restoration application which was filed earlier to set aside the order dismissing the suit for default. In consequence, both the applications stood dismissed. Aggrieved thereby, the plaintiff in the said suit is before this Court.
2. Heard the learned counsel for the petitioner/plaintiff and the respondent/defendant.
3. Parties shall hereinafter be referred to as arrayed in the suit.
4. The suit, Case No. RBT 3 dated 13.08.2003, was filed by the plaintiff for recovery of a sum of Rs.9,59,784/- (Rs. 7,21,642/- towards principal and Rs.2,38,142/- towards interest) along with further interest @ 12 % per annum. The case of the plaintiff was that the defendant was its customer and the suit amount was due and payable by it for purchases made on credit.
5. However, as there was no representation for the plaintiff on 23.10.2009, the trial Court dismissed the suit for default under Order 9 Rule 8 CPC. The plaintiff thereupon filed an application in Case No.126 dated 21.11.2009 to restore the suit. By order dated 16.11.2011, the trial Court dismissed this application for default as none appeared on behalf of the plaintiff. Thereupon, the plaintiff filed an application seeking restoration of the restoration application which was dismissed for default on 16.11.2011. Therein, it stated that it had been erroneously informed that the next date fixed for the hearing of the earlier restoration application was 18.03.2012 and was therefore unaware of the fact that the case was to be taken up on 16.11.2011. It also sought condonation of the delay in the filing of the restoration application on the ground that the delay was not at all intentional as the date of hearing was noted wrongly.
6. These applications were dismissed by the trial Court, vide the order under revision. Therein, the trial Court took note of the facts stated supra and observed that the conduct of the plaintiff all through showed that it was not interested in pursuing the case. The trial Court opined that the plaintiff had not proved its bonafides and due diligence as it was not in a position to establish as to what prevented it from appearing before the Court on the relevant date. Holding so, the trial Court concluded that no specific grounds were made out to justify the non-appearance of the plaintiff, whereby the subject applications could be allowed. The application for condonation of delay as well as the application for the restoration of the restoration application were accordingly dismissed.
7. Shri S.S. Arora, learned counsel for the petitioner, would contend that the conduct of the plaintiff was not such that the trial Court should have non-suited it without examining its claim on merits.
8. Be it noted that, basing on the request of the learned counsel for leave to place on record the zimini orders passed by the trial Court prior to 23.10.2009, the matter was adjourned on 12.09.2018. Pursuant thereto, the plaintiff filed CM-20937-CII of 2018 in this revision seeking to place on record the zimini orders (Annexure P-6). The application is accordingly ordered and the zimini orders are taken on file.
9. As the trial Court rendered findings on the conduct of the plaintiff all through the suit proceedings apart from his failure to explain his absence on the relevant date and as this Court permitted the plaintiff to file the orders passed prior to the dismissal of the said suit, this Court deems it proper to go beyond the order under revision so as to examine the plaintiff's bonafides. Perusal of the aforestated zimini orders would demonstrate that after the filing of the evidence affidavit of PW-1 on 05.03.2007, the ma
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