- (1.) This revision petition is directed against the order dated 13.11.2001 passed by the Civil Judge (Jr. Division), Nuh whereby an application for restoration of the suit moved by the petitioner-plaintiff was dismissed, as well as against the judgment dated 28.9.2004 passed by the Additional District Judge, Gurgaon upholding the afore-said order. Briefly stated, the facts of the case are that the plaintiff petitioner filed a suit for declaration challenging Fard Badar No. 40 dated 16.7.1991 and also sought consequential relief of permanent injunction to restrain the defendants from interfering in its possession over the subject property. The plaintiff-petitioner led its entire evidence and when the case was fixed on 3.4.2001 for the defendants' evidence, no one appeared on its behalf as a result of which the learned Civil Judge (Jr. Div.), Nuh passed the following order: Present: None for the plaintiff. Sh. Abdul Rehman, Adv. for the defendants. Case called several times but none has appeared for the plaintiff. It is already 12.30 P.M. Waited sufficiently. Further wait is not justified. Hence, the suit is dismissed in default u/Order 9 Rule 8 CPC. Two DWs namely Jiwan Khan and Jagpal, DRK, DC record room, Gurgaon are present. Certified copy of order of redumption dated 5.5.59 and receipts filed on record. Summoned witness is discharged. File be consigned to record room. Announced. Civil Judge (Jr.Divn.) Dated: 3-4-2001 Nuh.
(2.) On 29.5.2001, the petitioner moved an application for restoration of the suit, inter alia, on the ground that its counsel, Shri Dinesh Kaushik, Advocate had informed on 13.2.2001 that the recording of the defendants' evidence would be a long drawn process, therefore, the duly authorized representative of the petitioner need not to attend the court proceedings. The said counsel also assured that he was well conversant with the facts of the case and will cross-examine the witnesses to be produced by the defendants. However, on 3.4.2001, Shri Dinesh Kaushik, Advocate could not attend the court proceedings on account of illness of his father. It was also averred that the above-named counsel kept on informing the petitioner about the alleged dates of hearing fixed for the defendants' defence and it was only two days before moving the application that the petitioner-company came to know about dismissal of the suit in default and, thus, there is sufficient cause to restore the suit and hear it on merits.
(3.) The respondent-defendants, however, opposed the aforesaid application, inter alia, on the ground that the same was hopelessly time barred and that the plaintiff-petitioner was liable to suffer due to its own negligent act and conduct.;