H.S. MADHUKAR Vs. M/S SERENE TOURISM VENTURES
LAWS(UTN)-2012-6-103
HIGH COURT OF UTTARAKHAND
Decided on June 06,2012

H.S. Madhukar Appellant
VERSUS
M/S Serene Tourism Ventures Respondents

JUDGEMENT

V.K. Bist, J. - (1.) HEARD Mr. Neeraj Garg, Advocate for the revisionist, Mr. Siddhartha Singh, Advocate for the respondent and perused the record. Instant revision has been filed by the defendant/revisionist against the order dated 13.04.2012 passed by Civil Judge (Sr. Div.), New Tehri in Misc. Case No. 1 of 2012 whereby application under Section 5 of Limitation Act and Restoration Application under Order IX Rule 9 of Code of Civil Procedure, moved by plaintiff/ respondent, was allowed.
(2.) BRIEFLY stated that plaintiff/respondent instituted Original Suit No. 20 of 2011 for perpetual injunction against the defendant/revisionist with the prayer for restraining the defendant from interfering with the peaceful possession over the property in question and for causing any damage or loss to the fencing and steel angles of the boundary on the southern edge of the land or any other part of the property belonging to the plaintiff/ respondent. Date fixed in the suit was 22.12.2011 on which date, plaintiff or his counsel were not present, however defendant, through his counsel, was present in the Court. Since nobody appeared on behalf of the plaintiff, the suit was dismissed for want of prosecution. In the month of January, 2012 the Court was closed due to winter vacations. After the vacations, on 31st January, 2012 the plaintiff/ respondent moved application under Section 5 of Limitation Act alongwith the restoration application under Order IX Rule 9 of C.P.C. for recalling the order dated 22.12.2011. In the affidavit, it was mentioned that the date was wrongly noted by the Clerk of plaintiff/respondent due to which counsel for the plaintiff could not appear before the Court below on the date fixed. The defendant/revisionist filed his objection against the delay condonation application as well as against the restoration application. The trial Court vide impugned order dated 13.04.2012 allowed the delay condonation application as well as the restoration application. Submission of learned counsel for the revisionist is that the Court below, while allowing the delay condonation application has not mentioned any reason for allowing the restoration application, inasmuch as, there is no finding whether there was adequate or sufficient reasons shown by the plaintiff for its non appearance before the trial court on the date fixed. On the other hand, learned counsel for the plaintiff/ respondent contends that once error of the trial Court is before the revisional Court, it stand cured and this mistake can be corrected at the revisional stage.
(3.) I have considered the submission advanced by the learned counsel for the parties and have also gone through the order impugned passed by learned Civil Judge (Sr. Div.), Tehri Garhwal. I find that the learned trial Court has dealt with the matter and discussed the reasons in the delay condonation application and allowed the same. I do not find any apparent error so far this part of the impugned order is concerned. However, I find that, when order was passed on the restoration application, the Presiding Officer has not, at all, mentioned that having been satisfied with the reasons shown in the restoration application for non -appearance, he is allowing the restoration application. At least, the Presiding Officer should have mentioned the reasons of his satisfaction for non -appearance of the plaintiff or its counsel on the date fixed when the suit was dismissed for want of prosecution. Every order should disclose reason. But, since in the restoration application itself, the reasons have sufficiently been explained, I think since reason for non -appearance on the date fixed was sufficiently explained in the restoration application, I find no reason to interfere with the order.;


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