Abdul Qadeer vs Mohd. Saghir And Ors.
2001 Latest Caselaw 1467 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This revision petition is filed assailing the order of a Civil Jude dated 24.5.2001 whereby he had restored a civil suit under Order 9 Rule 9 CPC and has condoned the delay in filing the application for restoration under Section 5 of Limitation Act.

2. Ms. Saiden Begum (who has died and is represented by her legal representatives, the respondents) had filed a civil suit for recovery of possession and mesne profits against the petitioner in 1987. The petitioner has contested it. Ms. Saiden had filed another civil suit against one Mohammad Hafeez. Proceedings in both the suits were being conducted on the same day one after the other. These suits were fixed for evidence of the plaintiff on 17.5.1999. On that day one of the plaintiffs was present. One witness was also present. But due to the absence of their counsel, the case Along with the second suit was adjourned to 8.9.1999 for evidence of the plaintiff. Inadvertently, the adjourned date was wrongly noted by the court staff as 8.7.1999 on the file cover of the suit of petitioner. As a result this suit was taken up on 8.7.1999 and was dismissed for non-appearance of the plaintiffs. The second suit, however, was heard on 8.9.1999 and on subsequent dates and the plaintiffs and their counsel continued to appear.

3. On 27.9.2000 the respondents filed application for restoration of the suit alleging that they were under the impression that the hearing is taking place in both the suits. So they remained unaware that the instant case had been dismissed in default. They came to know about its dismissal on 3.8.2000 from an affidavit of the petitioner filed in contempt petition in the High Court. Their counsel did not tell them about dismissal of this suit. They changed their counsel and moved the application for condensation of delay under Section 5 of Limitation Act.

4. The petitioner has opposed both these applications mainly on the ground that the application was filed after 14 months of the dismissal of the suit in default and that there was no good reason for condensation of delay However, it was not denied that the two suits were being taken up together and that they were adjourned on 17.5.1999 for 8.9.1999 and that on 8.7.1999 on which date this suit was dismissed in default none of the parties was present.

5. The learned Civil Judge has allowed both the applications of the respondents on the ground firstly that the suit was taken up on 8.7.1999 by mistake of its staff who had inadvertently noted next date of hearing on the cover of the file wrongly. So the dismissal of the suit on 8.7.1999 was by mistake of the court and no person should be allowed to suffer due to mistake of the court. Secondly, the two suits were being taken up together on same dates and the respondents continued to attend the hearing on subsequent dates. In view of the identical name of the plaintiffs shown in the little of the two cases the case of the respondent that they attended the proceedings without Realizing that only one suit was actually listed and that their counsel did not correctly inform them inspired confidence, therefore, the respondents should not suffer on account of mistake of their counsel.

6. No person should be allowed to suffer on account of mistake of the court and it is imperative upon a court to rectify its own mistakes, if it has caused prejudice to a part, as and when it comes on its notice. Dely, howsoever long it may, will not stand in the way of the court relegating the parties to the same position as they were before that mistake occurred. In the instant case the date of hearing fixed in the suit was 8.9.1999 but it was taken up on 8.7.1999 by mistake and was dismissed for non-appearance of the plaintiffs. This mistake came to the notice of the court when application for restoration of the suit was filed by the respondents. The trial court was duty bound to restore the suit for bearing since it was dismissed on a wrong date which was not fixed for hearing in the suit. The order of learned Civil Judge dated 24.5.2001 does not suffer form any legal infirmity.

7. On the second ground also the impugned order is unassailable. The application for restoration of suit was filed with application for condensation of delay. Of course, 14 months later, but sufficient cause has been shown by the respondent for their absence on the date of hearing 8.7.1999 and for filing the application after 14 months.

8. Order 9 Rule 9 CPC empowers a court to set aside an order of dismissal of a suit for non-appearance of the plaintiff on the date of hearing on being satisfied that there was sufficient cause for such absence. Words "sufficient cause" have not been defined in the CPC but broadly speaking, they mena 'good, adequate or sound cause'. It is now well settled that a liberal and not pedantic approach is adopted for condensation of delay and restoration of suit. There is always an element of carelessness and negligence in the cases where suit is dismissed in default. But court should always be liberal and not deny a party hearing of his case on merit on mere technicalities unless of course the court finds that the absence of the party was not bonafide or it was with latent motive of causing delay or prolonging the disposal of the suit. For advancement of justice where the opposite party may be adequately compensated by costs the suit should be may be adequately compensated by costs the suit should be restored. It is true the absence of a counsel on the date of hearing by itself is not a sufficient cause for condensation of delay but it should also not be lost sight of in our judicial administration system where the parties lean on their advocate heavily for prosecuting or defending a cause once they appoint him. The mistake and negligence of an advocate in a given situation and circumstance may amount sufficient cause to condone the delay and restore the suit.

9. In the instant case it is not denied that the suits of the same plaintiffs were being taken up together. It is plausible, rather believeable, that the second suit which was dismissed in default on a date which was not fixed in the suit was missed by the advocate and the plaintiffs and it came to notice only when the petitioner filed application/affidavit in contempt proceedings and copy was served on the respondents. There is negligence on the part of the advocate of the respondent no doubt but for it the petitioner should not be made to suffer particularly when the respondent could be adequately compensated by costs.

10. For all these reasons the learned Civil Judge was perfectly justified in allowing the two applications and restoring the civil suit. There is no error of jurisdiction, illegality or material irregularity in exercise of jurisdiction by the Civil Judge warranting interference in the impugned order by this Court. The revision petition is dismissed in (SIC)