- (1.) Having heard Mr. Sinhal at length and having regard to the chequered history of the suit which is one for specific performance of a sale agreement instituted as long ago as in 1983 against several defendants one of whom went ex parte. The ex parte defendant approached this Court in a revision petition in the year 1992, which was admitted and thereafter allowed on 4th May 2007 on final hearing. Defendant No.5 was put back as a contesting defendant in the suit. The order of this Court was received by the trial Court in early 2008 and in absence of date fixed for appearance of the parties before the trial court by this Court the trial judge took suo motu proceedings on 25th February 2008 issuing notice to the parties as he should have. For absence of appearance by the plaintiff or its counsel on the day fixed for appearance, the trial Judge was pleased to dismiss the suit in default. This was in the year 2008. On coming to know of the dismissal of the suit in default of appearance, the petitioner filed an application for restoration of the suit on 30th May 2008 together with an application for condoning the delay in filing the application beyond the period of 30 days prescribed in the Limitation Act. It is urged that the application was filed in abundant caution since the application was in fact within the limitation period from the date of knowledge if not the date of the order. Be that as it may, it took all but six years for the application to be heard and decided taking a heavy toll not only the parties but of court time. The Civil Judge, Senior Division, Faridabad, has found it fit to dismiss the application for restoration of the suit. The impugned order has been passed on 4th March 2014.
(2.) Mr. Sinhal argues that from 1992-2007, the matter remained pending before this Court and therefore, it took many years to decide the application for restoration of the suit, which was dismissed in default in 2008. The evidence of the plaintiff stands adduced on record. Since the suit had carried on against defendants No.1 to 4 and remained in progress, the balance sale consideration under the sale agreement was deposited in Court a long while back duly permitted by the Court. Mr. Sinhal submits that if the suit is not restored, his client would have pay a heavy price for absence of his counsel on one day, who may have been a little amiss in appearing on the day fixed when the suit was dismissed in default but the petitioner, should not be made to suffer for none of his fault. He points out that both the parties were absent on the date when the petition was dismissed in default.
(3.) I have considered the arguments of Mr. Sinhal and find sufficient substance in them to order the suit to be restored to its original number to avoid a miscarriage of justice. The order is apparently harsh and does not bear the stamp of the human touch and might lead to terrible results in the plaintiff's pursuit of justice.;