Inderjit Singh, J. - (1.) M /s Rajgarhia Paper Mills Pvt. Ltd. etc. -petitioners/defendants have filed this civil revision petition against Venus Paper Mills Ltd. -respondent/plaintiff under Section 115 C.P.C. for setting aside the impugned order dated 16.7.2014 passed by the learned Additional District Judge, Faridabad in Civil Appeal No. 185/13 and for consequential direction. I have heard learned counsel for the petitioners and have gone through the record.
(2.) FROM the record, I find that Venus Paper Mills Ltd. -plaintiff filed suit against M/s Rajgarhia Paper Mills Pvt. Ltd. When the suit was pending, none appeared on behalf of the plaintiff on 11.2.2013 after lunch and the suit was dismissed in default for appearance of the plaintiff. Annexure -P.8 shows that as per the interim orders, earlier in the day the plaintiff was present in person. It is written in the order that on the same day the case was fixed for cross -examination of PW -1 and for remaining PWs. The plaintiff has requested that the case be passed over after lunch since his counsel is busy in some other Court and he shall file his affidavit in his examination -in -chief after lunch. Accordingly, it was ordered that the matter be taken up again at 2.00 p.m. When the case was called after lunch, none -appeared on behalf of the plaintiff, therefore, the suit was dismissed in default. An application for restoration of the suit has been filed, the copy of which is placed on the record as Annexure -P.9, in which it is averred that in the post -lunch session the junior counsel from the plaintiffs side visited the Court. However, inadvertently he noted down the next date of the case as 16.2.2013. On 12.2.2013, it was revealed that, in fact, the case was dismissed in default and the noting down of the date as 16.2.2013 was an inadvertent human error.
(3.) AT the time of arguments, it was brought to my notice that this application was filed on 13.2.2013 i.e. within two days of the dismissal of the suit. The learned Civil Judge (Junior Division) after hearing the arguments on the application under Order 9 Rule 9 C.P.C. dismissed the same. Then the appeal was filed against the order dated 2.7.2013 before the learned Additional District Judge, Faridabad, who vide order dated 16.7.2014 allowed the appeal after discussing the law. The learned Additional District Judge, Faridabad vide order dated 16.7.2014 by discussing the fact in minute detail and the law set side the order of the trial Court and the suit was ordered to be restored to its original number. The order passed by the learned Additional District Judge, Faridabad is correct and as per law. When the plaintiff is present on 11.2.2013 in the morning and requested for fixing the case after lunch, as his counsel was busy in the another Court in another case, then by calling the case after lunch, this suit was dismissed in default as none appeared on behalf of the plaintiff. However, the presence of the plaintiff in the morning session in the Court and also filing of application within two days for restoration of the suit itself shows that there is no gross negligence on the part of the plaintiff nor there is anything to show the mala fide on the part of the plaintiff to delay the proceedings nor there is anything on the record to show that, in any way, the plaintiff was going to be benefited by getting his suit dismissed in default. Therefore, the order dated 2.7.2013 passed by learned Civil Judge (Junior Division), Faridabad was correctly set aside in the appeal by learned Additional District Judge, Faridabad.;