G. M. LODHA, J. - (1.) THIS is a revision application which deserves to succeed on a very short point that on the day the suit was dismissed in default, only the defendant and his counsel were present. The counsel for the defendant signed the order sheet on 26. 10. 78.
(2.) IT appears that after this, may be soon after or little later, the plaintiff and his counsel appeared and the suit was restored by that time the defendant and his counsel were not present nor they were called or informed. The above circumstances, which are proved by the affidavit of the defendant's counsel which has not bean contradicted on the material point, mentioned above, by the affidavit of the plaintiff and there is complects absence of counter affidavit of the counsel for the plaintiff. The obvious inference which could have been drawn by the lower court should have been, as mentioned above. Contrary to it, the lower courts only on the basis of the order sheet took the view in the contrary manner which is against the factual position which has emerged, as mentioned above. In the above circumstances, on 29-1-79 when the evidence of the plaintiff was being taken, the defendant objected and narrated the above facts and then moved an application on 6-2-79 for condonation of delay in making payment of the rent u/s 13 (3) of the Rajasthan Premises (Control of Rent& Eviction Act ). Then the legal and logical deduction was to allow it because though the restoration cannot be challenged, as it may be bonafide, but the fact that it was done in the absence of the defendants and their counsel, who were never intimated of it is to be given its legal and logical effect. This is well established principle of law that no one should suffer on account of any commission or commission of the Court. Reference may be made to the case Jang Singh Vs. Brijlal (1) that the court should not do harm to the litigant. I have also taken the same view in Jagannath Vs. Jodharam (2) werein in paras 20 and 21 the same maxim has been followed and it has been held that even if the provision is mandatory then also no one would be allowed to suffer for the mistake of the court. I have placed reliance on the judgment of Brij mohan Vs. Kuaranand (3) and yet judgment of B. Banerjee vs. Smt. Anita Pan (4 ). Obviously, in the instant case, the tenant petitioner was not at fault, and when he committed no fault, it cannot be said that he has committed default. Default pre-supposesa fault, and in my view there was neither a fault nor a default. When he volunteered to pay the amount on 6-2-79 by an application, the lower court should have accepted it realising that on 26-1-78 the order sheet of the court displayed a curious situation where the counsel for the defendant has signed the first half and the Presiding Officer before signing it has restored it without calling the counsel of defendant and without taking precautions inform him later on at least.
(3.) CONSEQUENTLY, the revision application is accepted and the impugned order is set aside- Application dated 6-2-79 is also accepted. The delay in deposit of the amount is condoned for the reasons mentioned above. The parties shall bear their own costs. .;