Bawa Jagjit Singh vs Achhar Singh And Anr.
1992 Latest Caselaw 352 Del

JUDGMENT

P.N. Nag, J.

(1) In view of the averments made in the application supported with an affidavit, the delay in filing the civil revision petition is condoned. C.R. 1508189 & CM. 4826/89

(2) This revision petition is directed against the order dated 20.7.1989 passed by Sh. M.S. Rohilla, Sub-Judge First Class, Delhi whereby he has dismissed the application filed on behalf of the petitioner herein under Order 9, Rule7r/w Section 151 of the Code of Civil Procedure seeking restoration of the application under Order 9 Rules 7 & 13 dated 20.5.1986.

(3) The petitioner had filed objections to the award dated 23.12.1981 before the trial Court. The Court had posted that case for filing rejoinder to the reply filed by the petitioner to the objection petition, to 8.5.1986. Unfortunately, according to the learned Counsel for the petitioner, he noted down the next date as 9.5.1986 instead of 8.5.1986 in his diary, 9th May, 1986 was declared as public holiday and consequently Counsel for the petitioner attended the Court on 10.5.1986. On that date he came to known that the suit had already been decreed making the award a rule of the Court and the objection petition dismissed on 8.5.1986.

(4) Thereafter the petitioner filed an application dated 19/20.5.86 under Order 9 Rules 7 & 13 r/w Section 151 Civil Procedure Code for re-calling of the order dated 8.5.1986 and Consequently restoring the objection petition to its original number. That application was dismissed on 28.8.1987 as no process fee was filed. According to the learned Counsel for the petitioner process fee in fact was filed.

(5) The petitioner filed another application dated 29.8.1987 under Order 9 Rule 7 r/w Section 151 of the Civil Procedure Code for restoration of earlier application under Order 9 Rule 7 dated 19/20.5.1986. That application again was dismissed vide the impugned order dated 20.7.1989. Hence this revision petitioner.

(6) After hearing the learned Counsel for the parties I am of the opinion that the approach of the trial Court in dismissing the petitioner's application dated 29.8.1987 is erroneous. In fact the trial Court had framed an issue on 29.5.1986 as to whether there were sufficient ground to restore the application under Order 9 Rules 7 & 13 dated 20.5.1986. Since the trial Court has failed to consider the application of the petitioner dated 29.8.1987 and thereby exercised jurisdiction, the impugned order has, therefore, to be set aside on this ground alone. Even otherwise in the circumstances explained by the petitioner the application dated 29.8.1987 ought to have been allowed and thereby earlier application restored and the trial Court should have thereafter considered the application dated 20.5.1986 on merits. It is noticed that the trial Court has already considered and dismissed the application filed by the petitioner on 20.5.1986 and expressed his opinion that no purpose would be served to direct him to re-consider the application afresh. The earlier application dated 20.5.1986 was dismissed by the trial Court for non-filing of the process fee. and according to him, no sufficient cause was shown fur non-filing of the process fee in the application. In my opinion that application should also have been allowed by the trial Court as the Counsel has submitted that process fee in fact was filed .and this has escaped from the notice of the trial Court. Without entering into this controversy whether or not the process fee was filed, in my opinion the Court should have at least allowed another opportunity in the interest of justice to file the process fee at the most subject to payment of costs. In order to avoid multiplicity of the proceedings and in the interest of justice, I allow this revision petition and set aside the impugned order.

(7) The trial Court is directed to consider the objections filed to the award and proceed with the case in accordance with the law. Parties are directed to appear before the trial Court on 21.7.1992.