Pavani Engineering & Trading Co. ... vs D.D.A.
2010 Latest Caselaw 1530 Del

                                                        UNREPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               FAO No.337/2007

                                 Date of Decision: March 18, 2010


       PAVANI ENGINEERING & TRADING CO. PVT. LTD.
                                               ..... Appellant
                    Through Mr. M.S.Vinaik, Advocate

                      versus

       D.D.A.                                 ..... Respondent
                           Through Mr. Rajesh Mahajan, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

This appeal has been preferred against the order of an

Additional District Judge, Shri Girish Kathpalia dated July 23, 2007

dismissing the application of the appellant for restoration of the suit

which was dismissed in default on May 28, 2004. Along with the

application for restoration, an application under Section 5 of the

Limitation Act was also filed which too has been dismissed by the

impugned order.

It is not in dispute that the appellant had filed a suit for specific

performance of an agreement to sell dated April 27, 1984 initially in

this Court which was transferred to the District Court on account of

the pecuniary jurisdiction of this Court having been raised. The

transfer order directed the parties to appear before the District Court

on November 27, 2003. However, the appellant failed to appear on

the said date whereupon the concerned Court issued notices to the

parties for appearance. It is also not in dispute that the appellant was

not served with the notices of appearance. The suit, as has been

noticed above, was dismissed in default on May 28, 2004.

It is submitted by learned counsel for the appellant that as

admittedly the appellant was not served with the notices of

appearance issued by the transferee Court, the suit could not have

been dismissed in default.

On the other hand, it is submitted by learned counsel for the

respondent-DDA that if the appellant was not served with the notices

of appearance, it has to blame itself for it had failed to place on record

its changed address.

Be that as it may, the fact remains that the appellant was not

served with the Court notices and as per the counsel for the appellant,

the appellant was under the impression that the suit was being taken

care of by the then counsel representing the appellant in the suit.

Having regard to the aforementioned facts, I am of the view that

interest of justice demands that the suit should proceed on merits.

Hence, I set-aside the order dated July 23, 2007 subject to the

appellant paying cost of Rs.50,000/-. The parties are directed to

appear before the concerned Court on April 19, 2010.

The appeal is disposed of.

REKHA SHARMA, J.

MARCH 18, 2010 ka