J.V. Gupta, J. - (1.) This petition is directed against the order of the Additional District Judge, Karaal, dated 5th March, 1985, whereby the order dismissing the application for restoration of the suit was maintained in appeal.
(2.) Brief facts are that M/s. Punjab Khadi Gram Udyog Board, Chandigarh, filed a suit for possession and mandatory injunction against the three Defendants. The said suit was filed on 31 -8 -1978. On 18 -10 -1979, the case was adjourned for summoning Defendant No. 3 on filing process -fee for 24 -11 -1979. On 24 -11 -1979 Shri R. S. Jindal Advocate appeared for Defendant No. 1 and Shri H.K. Singal appeared for Defendant No. 2 but none appeared on behalf of the Plaintiff and as such the suit was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure. The Plaintiff -Board filed the application for restoration on 12 -2 -1980 alleging that on 28 -2 -1979 the suit was fixed for appearance of the Defendant but on that day the learned Presiding Officer was on leave and so the Reader of the Court adjourned the suit to 18 -10 -1979. On that date, neither the Plaintiff nor its counsel appeared and inadvertently the presence was recorded by writing "present as before" and the case was adjourned on 24 -11 -1979 for summoning the remaining Defendant Since the Plaintiff or his counsel did not appear oh 18 -10 -1979 so it had no knowledge that the suit had been adjourned to 24 -11 -1979 for summoning Defendant No. 3. In the circumstances, the suit was wrongly dismissed in default on 24 -11 -1979, as it was incumbent upon the Court to issue notices on 18 -10 -1979 for 24 -11 -1979. When Defendant No. 2 started raising construction on 7 -2 -1980 on a portion of the suit land, a report was lodged in the police station and there Defendant No. 2 showed a copy of the Court order dated 24 -11 -1979 vide which the suit was dismissed in default. Thus the file was got inspected on 11 -2 -1980 and then necessary application was moved the next day on 12 -2 -1980. The application was contested inter alia on the ground that it was barred by time and that the Plaintiff as well as its counsel were present on 18 -10 -1979 when the case was adjourned to 24 -11 -1979. The learned trial Court found that the application was barred by time and there was no sufficient ground for restoration of the suit. Consequently the application was dismissed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court. Dissatisfied with the same, the Plaintiff has filed this petition in this Court.
(3.) The learned Counsel for the Petitioner contended that Shri Rizak Ram Advocate was the Senior counsel for the Plaintiff but he was appointed as a Minister on 28 -7 -1979 and thereafter Shri Raj Kumar Advocate of Sonepat attended the case pending in the Court at Panipat. On 4 -8 -1979 the Presiding Officer was on leave and the case was posted for proper orders on 17 -8 -1979. Raj Kumar Advocate has appeared as witness as A.W. 2 and he has stated that on 4 -8 -1979 he asked Shri Raj Pal Advocate to attend the case and inform him about the next date. Shri Raj Pal Advocate has also appeared as A.W. 4 and he has stated that since the brief had been taken away by Shri Raj Kumar Advocate he could not appear. Thus argued the learned Counsel that on 18 -10 -1979 the presence of the counsel as "present as before" was wrongly recorded and that is why the next date fixed on that date i.e. 24 -11 -1979 was not known to the Plaintiff. According to the learned Counsel, the whole approach of the courts below in this behalf was wrong, illegal and misconceived. The Plaintiff could not be allowed to suffer on account of the negligence of its counsel, if any, On the other hand, the learned Counsel for the Defendant -Respondents submitted that on the appreciation of entire evidence it has been concurrently found that there was no sufficient ground for restoration and, therefore, that being a finding of fact could not be interfered with in revisional jurisdiction. In support of his contention he referred to The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hyderabad and Anr. v/s. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad : A.I.R. 1973 S.C. 76. According to the learned Counsel, the Plaintiff has failed to prove its bona fides for its absence on 24 -11 -1979 when the suit was dismissed in default.;