Energy Savers India Pvt Ltd & Ors. vs Sh.Ajit Lal Tandon
2014 Latest Caselaw 3956 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+          C.M.(M) No.1364/2012 & C.M.No.20897/2012 (Stay)

%                                                     27th August, 2014

ENERGY SAVERS INDIA PVT LTD & ORS.                  ......Petitioners
                   Through:  Mr.D.D.Singh with Mr.Navdeep Singh,
                             Advocates.

                          VERSUS

    SH.AJIT LAL TANDON                                         ...... Respondent

                          Through:       Ms.Meenakshi Jain, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India impugns

the order of the trial court dated 22.3.2012 by which the trial court allowed

the application of the plaintiff/respondent under Order IX Rule 9 of the Code

of Civil Procedure,1908 (CPC) and restored the suit subject to payment of

costs of Rs.2000/-

2. A reading of the impugned order shows that the case was fixed for

filing of the written statement on 08.3.2010, but as per the case of the

respondent/plaintiff, a wrong date of hearing was noted i.e 28.2.2010, and

consequently the suit was dismissed in default for non-appearance on

08.3.2010. The trial court while allowing the application for restoration has

made following observations in paras 5 & 6 of the impugned order dated

22.3.2012:-

" 5. In the present case, the averments in the application has been supported by the affidavit of the plaintiff. The plaintiff has also filed the copy of the diary of his counsel in support of the averments made in the application. There is no reason to disbelieve the contention of the plaintiff which is being supported by his affidavit and there might be a possibility that the counsel for the plaintiff might have noted down the wrong date inadvertently. Moreover, the proceedings in the present case are at the initial stage and also considering that the endeavour of the court should be to dispose of the case on its merits and not merely on technical grounds and so far as the contention of the defendant with regard to the delay in filing of the present application is concerned, the same can be compensated by imposition of costs.

6. Therefore, in view of my above discussion, the present application under Order 9 Rule 9, read with Section 151 CPC filed by the plaintiff is hereby allowed subject to costs of Rs.2000/- and the present suit is restored to its original number and position on payment of the costs. Application is disposed off accordingly."

3. Learned counsel for the petitioners/defendants argues that there is an

inherent error in the impugned order because the case was not fixed for

filing of the written statement on 08.03.2010, but, when the counsel was

asked to show the order by which the suit was fixed for 08.3.2010 in this

petition which is pending since December 2012, it is seen that the order

fixing the case for 8.3.2010 is not filed. Therefore, inspite of averments of

the petitioners/defendants in the petition that the case was not fixed for filing

of written statement on 8.3.2010, I have to take as correct whatever is stated

in the impugned order that the suit was fixed for filing of the written

statement on 08.3.2010.

4. The subject suit is a suit for recovery of a sum of Rs.1,87,650/-, and I

do not think, grave prejudice is caused by an order such as the impugned

order restoring the suit, taking that CPC is a handmaid of justice. Powers

under Article 227 of the Constitution of India are discretionary and meant to

be exercised in extraordinary situations to prevent injustice. Powers under

Article 227 of the Constitution of India are not exercised in routine even if

the impugned order may not be strictly legal, once no grave injustice is

caused. In my opinion, no injustice is caused by restoring the suit because

after all the petitioners/defendants will have enough opportunity during the

trial to show that the case of the respondent/plaintiff is not correct and

should be dismissed.

5. In view of the above, there is no merit in the petition, and the same is

therefore dismissed, leaving the parties to bear their own costs.

AUGUST 27, 2014/KA                             VALMIKI J. MEHTA, J