State of Haryana v. Vijay Kumar & Anr.

CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Manish Bansal, Additional Advocate General, Haryana for the petitioner. Rakesh Kumar Garg, J. (Oral) By way of this revision petition, the State of Haryana has challenged the order dated 18.1.2006 (Annexure P-1) whereby its application for making the award dated 27.12.1990 a rule of the court was dismissed for non-prosecution as the petitioner-State of Haryana failed to furnish the necessary requisites for serving the respondent/contractor and order dated 26.9.2008 (Annexures P-3) passed by the Additional Civil Judge (Sr. Division), Kaithal whereby its application for restoration of the petition for making the award of rule of the Court was dismissed vide order dated 18.01.2006. As per the averments, an award was made by respondent No.2 on 27.12.1990 allowing a sum of `44,640/- in favour of the petitioner- State of Haryana. An application dated 22.1.1991 was filed by the State of Haryana in the Court for making the aforesaid award as rule of the Court. The aforesaid application was dismissed in default on 19.12.1995. An Application filed by the Department restoring the same was also dismissed vide order dated 17.4.1997. However, on an appeal filed by the CR No.2935 of 2010 2 Department which was accepted vide order dated 16.4.2004, the matter was remanded back to the trial Court to decide the application for making the rule of the award afresh by setting aside the order dated 19.12.1995. However, the application for making the award as Rule of the Court was again dismissed for non-prosecution vide order dated 18.1.2006 (Annexure P-1) . The petitioner filed an application for setting aside the order dated 18.1.2006 vide Annexure P-2. However, the said application was dismissed vide order dated 26.9.2008 vide Annexure P-3. While passing the aforesaid order, the trial Court observed as under: “A perusal of the case file reveal that the application sought to be restored of making other award Rule of the court was pending for giving notice to the opposite party from 18.1.2005 and it was ultimately dismissed on

18.1.2006 for non depositing of process fee and registered envelop etc. From the case file, it is further revealed that for 27.10.2005 notice could not be issued as copy of application was not filed and thereafter for

29.11.2005 registered envelop etc. were not filed and then on 4.1.2006, last opportunity as granted by the court to the applicant to file the process fee and registered cover etc., so that the respondent could be served but ultimately when consecutively on these dates, the applicant did not comply with the court order then order for dismissal of the application was passed on 18.1.2006. Ld. Government pleader has failed to show as to why consistently for three dates the process fee and registered envelop were not submitted to the court, therefore, no reasons are made out to restore that CR No.2935 of 2010 3 application. The simple reasons for misunderstanding the date is not deemed sufficient to allow this application because default on the part of the applicant was not on single date but consecutively on three dates that speaks volumes of their lacks attitude to proceed with application. Further this laxity is proved from the fact that approximately one year the applicant kept the matter pending for service of the respondent who was none other than contractor and Superintending Engineer Gurgaon circle, therefore, finding no merits in the application, the same is hereby dismissed. File be consigned to the record room after due compliance.” It is relevant to mention at this stage that though in the revision petition, it has been prayed that order dated 14.1.2010 Annexure P-5 whereby a rectification was made of the typographical error regarding the amount be set aside, however, no challenge is made to the aforesaid order during the course of arguments as the said rectification was allowed as prayed at the instance of the State of Haryana itself. Challenging the order dated 18.1.2006 and 26.9.2008, it has been submitted that the impugned order dated 18.1.2006 was passed due to unavoidable circumstances and the petitioner shall suffer irreparable loss and injury which cannot be compensated in any manner if the aforesaid impugned orders are not set aside. It has been further submitted that it is settled law that in case of restoration a lenient view has to be taken by the Court to restore the same. I have heard learned counsel for the petitioner and also perused the record of this petition as well as the record produced before this Court by the petitioner-Department. CR No.2935 of 2010 4 From the sequence of facts as narrated above, one thing is clearly established that the Department has not pursued its remedy with due diligence and in fact at every stage has moved negligently and without caring for financial loss to the Government. The Department has failed to produce on record any justification in pursuing its remedy in a such leisurely manner which establishes one fact beyond doubt that there is some nexus between the Department and the contractor and the case has not been pursued properly only to give illegal gains to the respondent- contractor. Thus, I find that the dismissal of the application for making the award as Rule of the Court vide order dated 18.1.2006 was not a bona fide mistake on the part of the Department but was due to negligence and mala fide one and therefore, no interference is warranted in the order dated

26.9.2008. I find no merit in this petition and the same is dismissed. Further before parting with this order, it is made clear that the Department is free to hold an enquiry to fix the responsibility of the delinquent officials who have not pursued the case with due diligence and are responsible for causing financial loss to the Department. After holding such an equiry and fixing the responsibility, the Department shall be entitled to recover the aforesaid amount of financial loss from the aforesaid officials. November 18, 2010 (RAKESH KUMAR GARG) JUDGE