The restoration application should be considered on its own merits and not based on the past conduct of the parties.

JUDGMENT

Sharad Kumar Sharma, J. - The revisionist/landlord had instituted SCC suit, way back in the year 1993, which was numbered as Suit No.03 of 1993. The same was dismissed for want of prosecution on number of earlier occasions, during its pendency and ultimately, till it was dismissed for want of prosecution on 25.11.2014. Seeking its recall, the plaintiff/revisionist, herein, had filed a Miscellaneous Application under Order 9 Rule 4 of the CPC to be read with Section 151 of the CPC along with the delay condonation application, which was numbered as Paper No. 5C before the learned Trial Court; seeking recall of the order dated 25.11.2014. By the impugned order, which has been put to under challenge before this Court, in the present civil revision under Section 25 of the Provincial Small Causes Courts Act, it is the rejection of the restoration application, seeking restoration of the prior restoration application, which has been rejected.

2. The respondents have put in appearance through Mr. Shikhar Kacker, Advocate, as a Caveator. He was heard on merits of the matter. In case, if the judgment impugned itself is taken into consideration in its entirety, the reason assigned by the learned court of Judge SCC/Additional District Judge, 4th, Dehradun, while rejecting the SCC Misc. Case No.01 of 2016 "Nathmal Agarwal Vs. Lt. Col. Sudhish Kumar Sharma and others" is bad in the eyes of law.

3. On the previous occasions when the suit was being proceeded, there had been some dereliction or slackness and non- diligence, on part of the landlord/revisionist, in contesting the proceedings and the matter was dismissed in default and thereafter it was restored earlier on couple of occasions. It was those reasons, and act of plaintiff, which has been extracted by the learned Judge, Small Causes Court for rejecting the restoration application, as it was apparent from the findings recorded in the paragraph no.6 of the said judgment, where the logic assigned by the Court below for rejecting the restoration application, was that on the prior dates, the landlord/revisionist remained absent, matter was dismissed for want of prosecution and it was later on restored.

4. I am in absolute disagreement with the reason for rejecting of the restoration application, for recalling the order dismissing the matter in default, merely on the pretext that the proceedings is of the year 1993 and it remained pending for the last 28 years, that in itself cannot be the reason for not to decide the application under Order 9 Rule 4 of the CPC exclusively on its own merit, where the revisionist has given the reasonable and genuine reasons for absence on the date fixed; while considering the application under Order 9 Rule 4 of the CPC in a regular civil proceedings; I am of a considered view that the court's ceased with the restoration application for seeking to recall the order, ought not to have ventured or travelled into a past conduct of the litigants, in the proceedings for the purposes of extracting it as to be the reason to reject the application.

5. The said application, ought to have been exclusively considered on its merits and not on the basis of the past conduct of the parties or the applicant to the application. In support of the said contention, the learned counsel for the revisionist has made a reference to a judgment reported at "Rajendra Prakash & others Vs. Gauri Shanker & others,1990 RD 505". Though it was a case, which was factually dealing with the incident of consideration of an application under Order 9 Rule 13 of the CPC, but the aspect, which has been determined in the said judgment, it had been that the allegations or non-consideration of the material contained in an application which is under consideration, it ought not to decide the matter on the basis of the previous absence, it cannot be extracted to reject the recall application. Reference may be had to the paras of the judgment, which are extracted as under:-

"The trial court, on a consid