The court affirmed that procedural technicalities should not obstruct substantive justice when restoring cases dismissed for default.

O R D E R

The petitioner before this Court instituted O.S.No.

100/2008 before the Sub Court, Vatakara. The suit is one for specific performance. The suit was listed for trial to 06.2.2010. Due to some unavoidable reason, neither the petitioner nor his counsel was able to appear before the court. Consequently, the suit was dismissed for default. 2. Within the stipulated time, I.A.No. 317/2010 was filed by the petitioner for restoration of the suit. It was realized later that instead of petitioner's name, another client's name was unfortunately shown in the application filed by the petitioner. Realizing the mistake, that petition was not pressed. Thereafter, I.A.Nos. 585/2011 and I.A.No. 586/2011 were filed to restore the suit and also to condone the delay in filing the restoration application.

3. The petitions were opposed by the respondent herein. The main contention taken up by the respondent was that the signature in I.A.No.317/2010 was forged and the petitioner is not entitled to get any relief in the proceedings.

4. The trial court found it to be very attractive and impressive and dismissed the interlocutory applications for condonation of delay and also for restoration of the suit. The petitioner filed C.M.A.No. 48/2012. But that too was unsuccessful.

5. The learned counsel appearing for the petitioner pointed out that the trial court was greatly impressed by the contention in the counter to the petition for condonation of delay that in the earlier application, i.e. I.A.No.317/2010, the signature of the client was forged and that disentitled the petitioner from getting another relief. The learned counsel pointed out that it is precisely because the reason that it was realized that the signature of the person was not that of the person intended that the petition was not pressed and the subsequent petitions were filed. The difference in signature could not therefore have been taken as a reason to decline relief to the petitioner. The learned counsel also pointed out that there was no independent application of mind by the lower appellate court and it simply followed the footsteps of the trial court and quite surprisingly enough, the lower appellate court was even gone to the extent of saying that it was the abuse of process of court. The learned counsel contended that one fails to understand the above observation of the lower appellate court when the plaintiff was seeking restoration of the suit which is dismissed for default.

6. The learned counsel appearing for the respondent pointed out that the signature was forged in the earlier application and there were no satisfactory explanation for the delay that occasion in filing the second application. The courts below have adverted to all the aspects in this regard and there is no error in the orders passed by the courts below warranting interference under Section 115 of the C.P.C.

7. After having heard the counsel on both sides and after having perused the records, it seemed that the court below have erred in both on facts and in law. May be that, in the first application there was bonafide error in obtaining signature of the client concerned. May be also that, that was realized after the respondent filed his objections. But the fact remains that the petitioner immediately on realization of the mistake, reported not pressed and the petition was dismissed as not pressed. It may be noticed here that the first application for restoration of the suit was filed within the stipulated time.

8. It is no doubt true that the second application for restoration was filed some time thereafter and there was delay also in filing the said application. The petitioner therefore filed a petition to condone the delay.

8. In the counter filed by the respondent to the said application, their main defence was that there was an earlier petition in which the signature was forged and therefore the petitioner is not entitled to any relief. Both the courts below found considerable force in the above contention