Mool Chand v. Prem Goel & Anr.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amit Singla, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : Plaintiff Mool Chand has filed the instant revision petition under Article 227 of the Constitution of India. Plaintiff filed suit against respondents for permanent injunction restraining the defendants from interfering in ownership and possession of the plaintiff over the suit land. The plaintiff availed of many opportunities for his evidence, but could not lead any evidence. Ultimately, the case was adjourned to 06.10.2003 for plaintiff's evidence and last opportunity was granted. However, inspite thereof, no evidence of the plaintiff was present on 06.10.2003. His counsel made a statement in the Court that he shall produce the entire evidence on the next date of hearing, failing which his evidence be closed. In view of the said statement and in the interest of justice, the trial court granted one more opportunity to the plaintiff for his evidence and adjourned the case to 03.02.2004 for entire evidence of the C. R. No. 1605 of 2010 2 plaintiff at own responsibility and it was again last opportunity for this purpose. However, on 03.02.2004, none appeared for the plaintiff inspite of repeated calls. The plaintiff was awaited till 03:00 P.M. However, none appeared for him. Thereupon, the suit was dismissed under Order 9 Rule 8 of the Code of Civil Procedure (in short – CPC), vide order dated

03.02.2004. The plaintiff filed application (Annexure P-2) for restoration of the suit alleging that he has been rendered homeless by defendants and others inspite of stay order and he has been taking his family to different rented houses. It was also alleged that on 06.10.2003, the plaintiff was told by the Clerk of his counsel that the case had been adjourned to 03.04.2004. The Clerk gave him slip of the next date of hearing, which was however lost. The plaintiff came to attend the Court on 03.04.2004 and learnt that the suit had been dismissed in default on 03.02.2004. Counsel for the plaintiff was also busy in other cases and therefore, could not appear in the trial court on 03.02.2004, when the case was called. The application was resisted by the respondents. Learned Civil Judge (Junior Division), Hisar, vide order dated

29.04.2008 (Annexure P-3), dismissed the plaintiff's application for restoration of the suit. Appeal preferred by the plaintiff against the said order has been dismissed by learned Additional District Judge, Hisar, vide judgment dated 24.11.2009 (Annexure P-5). Feeling aggrieved, the instant revision petition has been preferred assailing orders of the courts below. I have heard learned counsel for the petitioner and perused the case file. From the sequence of events narrated herein above, it becomes evident that the plaintiff got the suit dismissed in default intentionally on

03.02.2004 because he had no evidence to lead. It was second last opportunity for his evidence at own responsibility. On 06.10.2003 i.e. the preceding date of hearing, the plaintiff's counsel had made statement that C. R. No. 1605 of 2010 3 the evidence of the plaintiff be closed on the next date. For this reason, the plaintiff preferred not to appear in the trial court on 03.02.2004 because otherwise, his evidence would have been closed by court order. The plaintiff was granted 7-8 effective opportunities for his evidence, but since it was apparent that the suit would merit dismissal on the basis of no evidence, the plaintiff intentionally got the suit dismissed in default on

03.02.2004 by preferring to remain absent from the Court. In view of this conduct of the plaintiff, no ground for restoration of the suit is made out because absence of the plaintiff on 03.02.2004 was intentional. In addition to the aforesaid, it is apparent that the plaintiff has not come to the Court with clean hands and the plaintiff is playing hide and seek with the Court. As noticed herein above, the plaintiff intentionally did not appear in the Court on 03.02.2004 and then moved restoration application on false averments. From the averments in the restoration application, it is evident that his counsel had noted the correct date of hearing i.e. 03.02.2004 because it is averred in the application that the counsel being busy in the other courts, could not appear in this case in the trial court. However, no affidavit of counsel or his Clerk has been filed by the plaintiff in support of the averments made in the restoration application. Moreover, the case was called several times by the trial court on 03.02.2004 till 03:00 P.M. It cannot be said that every time counsel for the plaintiff was busy in other courts and could not appear in this case. In addition to the aforesaid, the plaintiff has alleged that Clerk of his counsel had given him a slip mentioning next date of hearing as

03.04.2004. but the said slip was lost. If the slip had been lost, it is not explained as to how the plaintiff knew that the case was fixed for

03.04.2004. On the other hand, as noticed above, the counsel had noted the correct date of hearing as 03.02.2004, but even the counsel did not appear in the case. The restoration application is also barred by limitation having been moved more than 30 days after the dismissal of the suit. No C. R. No. 1605 of 2010 4 application for condonation of delay in filing the restoration application was either made. It is also worth mentioning that the plaintiff filed suit for permanent injunction, but as per averments in the restoration application, the plaintiff stood dispossessed from the suit property. However, the plaintiff neither initiated any action against the defendants for alleged violation of stay order nor amended the plaint to seek relief of restoration of possession of the suit house. For the reasons recorded herein above, I find no illegality in the orders of the courts below so as to warrant interference in exercise of power of superintendence under Article 227 of the Constitution of India. The plaintiff-petitioner is guilty of playing hide and seek with the Court and has not come to the Court with clean hands and therefore, does not deserve any relief. The revision petition is without any merit and is accordingly dismissed in limine. March 10, 2010 monika ( L. N. MITTAL ) JUDGE