C.R. No.3008 of 2015

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT

CHANDIGARH

C.R. No.3008 of 2015

Date of Decision.15.05.2015

Major Harindar Singh Gill

.......Petitioner

Versus

State Bank of India and others

......Respondents

Present:

Mr. Aman Pal, Advocate

for the petitioner.

CORAM:HON'BLE MR. JUSTICE K. KANNAN

1.

Whether Reporters of local papers may be allowed to see the

judgment ?

2.

To be referred to the Reporters or not ?

3.

Whether the judgment should be reported in the Digest?

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K. KANNAN J.

1.

The revision petition is against the order passed in the

application under Order 9 Rule 4 read with 151 CPC for setting aside the

order passed on 07.04.1992, the details of which are not clearly known.

In a normal situation, a suit which was dismissed for default under Order

9 Rule 4 CPC for taking steps to the defendants could have been

favourably considered by taking a liberal view that the suit would

require to be adjudicated after service of notice on all defendants. This

situation cannot obtain in this case and the trial Court has undertaken

an elaborate consideration of the various circumstances that would show

that the plaintiff has been grossly negligent, contemptuously indifferent

and has allowed for things to literally get out of control and that no

purpose will be served by setting aside the order passed already on

07.04.1992.

2.

This suit was instituted on 07.12.1989 to contend that a

PANKAJ KUMAR

2015.05.15 15:37

I attest to the accuracy and

integrity of this document

C.R. No.3008 of 2015

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particular court auction/sale brought at the instance of the State Bank

of India for enforcing a security is not valid and binding on the plaintiff.

The contention in the plaint was that the property belonged only to the

plaintiff and the mortgage purported to have been created by the

mortgagors did not have a right in the property. After the institution

of the suit, the plaintiff had not taken steps effectively for serving the

defendants No.2 to 5 and allowed only for the 1^st defendant-State Bank

of India to file its reply. After the suit was dismissed on 07.04.1992, the

plaintiff had taken no steps for having the suit restored against

defendants No.2 to 5 but appears to have engaged a different counsel

who filed an application belatedly on 19.02.1994 for restoration of the

suit. The contention in the application was that previous counsel had

not informed the plaintiff about the dismissal of the suit against

defendant Nos.2 to 5 on 07.04.1992. The application obviously was filed

more than 30 days from the date of dismissal of the suit against

defendant Nos.2 to 5. When an application was filed for setting aside

the order dated 09.04.1992, the applicant had made no reference to the

restoration application filed under Order 9 Rule 4 CPC but there was

otherwise specific relief for restoring the suit and setting aside the

order already passed in the year 1992. The plaintiff moved an

application under Section 5 of the Limitation Act belatedly and sought

for consideration of the applications which were filed in the year 1994.

The application was dismissed on 30.07.1994 holding that no petition

had been filed under Order 9 Rule 4 CPC to set aside the order dated

07.04.1992. The plaintiff, therefore, filed an application for review

contending that the order passed was erroneous and that they must be

PANKAJ KUMAR

2015.05.15 15:37

I attest to the accuracy and

integrity of this document

C.R. No.3008 of 2015

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recalled, for, there was adequate prayer for setting aside the order and

the previous application must have been construed only as filed under

Order 9 Rule 4 CPC. The Court declined the application holding that the

plaintiff could have availed of other remedies available under law and

the Court had no power to recall its own order.

3.

The plaintiff, therefore, sought to make good the defect