Delhi High Court
Shri Madan Lal vs Late Sh. Bindraban Handa Through ... on 12 September, 2000
Equivalent citations: 2001 IIAD Delhi 221, 89 (2001) DLT 653
Bench: B Khan
ORDER
KHAN, (J)
1. Petitioner, a 75 year old retired Govt.servant filed Suit No.88/77 for possession of 650 Sq.yards of land under Khasra No.65/1 at Mauja Seelampur, Gandhi Nagar, Delhi. Some defendants had filed the written statement and some had not and suit was posted on 11.4.78 for this. According to petitioner he reached the court late on that day because his bus broke down on the way and his suit was dismissed in default. He applied for its restoration on the same day and summons were issued on his application. All but respondent No.4 were served on this application and meanwhile he fractured his leg on 13.12.80 and remained confined to bed. He deputed his son to attend the proceedings on the next Along with a medical certificate but the court imposed costs of Rs.70/- for his absence and adjourned the case to 26.8.81. His son appeared in the court on this date but was told that Presiding Officer would sit in the afternoon. He allegedly handed over the cost amount to his counsel and rushed to Ghaziabad for some urgent work. Meanwhile his Counsel Mr.D.R.Singh, Advocate got busy in some other court and could not appear in time resulting in dismissal of petitioner's restoration application vide order dated 26.8.81. He, therefore, filed a review petition which also met the same fate. Now he has filed this petition under Article 227 to setting aside the impugned order.
2. Some respondents have filed reply to this petition taking expected pleas that petitioner had failed to pay the cost deliberately and had not shown any sufficient cause for his absence on 11.4.78 or for slackness in prosecuting his restoration application.
3. Trial court had primarily dismissed petitioner's application stating that he had failed to pay process fee and as a result defendants could not be served for three years in his restoration application and had also failed to deposit Rs.70/-.
4. It transpires that all except respondent-4 were served in the restoration application proceedings. As such it was not a case where petitioner had failed to take steps to serve the respondents (defendants). If he had failed to do it for respondent No.4, his application could be perhaps dismissed against this respondent on this ground. Similarly he offers a plausible explanation for non-deposit of costs on 26.8.81, which in any case should not have warranted a harsh action of dismissal of the suit.
5. It is apparent on the face of record that Trial court had proceeded in the matter arbitrary. The court ought to have realised and appreciated that petitioner's suit invoked his claim on 650 Sq.yards of land which could not be allowed to be defeated for non-service of one respondent or for non-payment of costs of Rs.70/-. The result is that old petitioner was plunged into avoidable litigation from nearly two decades. He was still fighting for revival of his suit which was filed way back in 1977 and was still to see the light of the day. His suit may have no merit but he was not allowed to prove it for 30 long years and was instead pushed into an ancillary proceedings resulting in miscarriage of justice. I, accordingly, find it a fit case for intervention and correction under Article 227 so that the 75 year old petitioner could feel satisfied to the extent the merit of his claim would be tested though belatedly.
6. This petition is accordingly allowed and impugned orders dated 11.4.1978, 26.8.81 and 1.9.81 set aside. Petitioner's suit No.88/77 shall revive and be restored to its original No. It shall proceed and be disposed off under law. Parties to appear before trial court on 18th September, 2000.
