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Thakur Ram Chandraji Maharaj Virajman And Another v. Iii-Addl. Civil Judge (S.D.) Mathura And Ors - WRIT - C No. 257 of 1999  RD-AH 6015 (18 November 2005)
HON. SHISHIR KUMAR, J.
The present writ petition has been filed for quashing the orders passed by the Court below dated 3.8.1998 and 16.10.1995 by which the application of the petitioners for restoration of their appeal has been rejected.
The facts arising out of the writ petition are that the petitioners filed a suit for injunction restraining the respondents no.3 to 6 from interfering in the management, service and worship of petitioner no.1 by petitioner no.2. The suit was registered as Suit no. 969 of 1990 .On an application filed by the petitioners for ad interim injunction; an interim order was granted maintaining the status quo. The suit was dismissed in default on 2.2.1993. When the petitioners came to know regarding the aforesaid fact, immediately an application was filed for recalling the said order but the trial court as well as the appellate authority has rejected the said application and appeal without considering the fact, which has been stated in the application. It has been stated on behalf of the petitioners that in the aforesaid case the date was fixed as 2.2.1993 and when the petitioners visited the court , the Bench Secretary of the said court informed that the next date in the aforesaid case is 2.3.1993. When the petitoner on 2.3.1993 visited the court, it was informed that there is a strike; as such next date cannot be informed. Then again on 4.3.1993 when the petitioner came to court, on an inquiry it was found that the said case has already been dismissed in default on 2.2.1993. Then immediately an application was made stating the fact that by mistake instead of 2.2.1993, the date was noted as 2.3.1993.
The objection was filed by the defendant-respondent and by order dated 16.10.1995, the application for restoration was dismissed on the ground that the plea which has been taken that instead of 2.2.1993, 2.3.1993 has been noted, cannot be believed. It has also been held that the earlier suit was dismissed and on an application filed on behalf of the petitioners, the same was not restored.
Against the rejection order of restoration, the petitoner filed an appeal. The appellate authority too without considering the contention raised on behalf of the petitioners and the contentions regarding noting of the date, has not believed and dismissed the appeal Against the aforesaid order dated 3.8.1998, the petitioners have approached this Court.
Notices were issued but no counter affidavit has been filed. It has been contended on behalf of the petitioners that now it is well settled law that the application for restoration in case the case has been dismissed in default, should be considered sympathetically and technical view should not be taken. It was a bonafide mistake on behalf of the petitioners to the effect regarding entering the date 2.3.1993 instead of 2.2.1993. Both the Courts below have clearly erred in law in dismissing the application filed by the petitioners. Both the courts have taken a very hyper technical view while considering the case of the petitioners
I have heard the learned counsel for the petitioners. In spite of the notice and service upon the respondents, no counter affidavit has been filed and the allegations made in the writ petition have not been denied. I have also considered the orders passed by the courts below. It appears that the petitioners by bonafide mistake had noted incorrect date. The courts below should have taken a lenient view. It was open to the courts below to impose certain costs or a specific observation should have been made while restoring the suit that in future, there will be no adjournment and if such thing is repeated, the exparte judgment will be delivered or the case will not be restored.
In view of the aforesaid fact, the writ petition is allowed and the orders passed by the courts below dated 16.10.1995, annexure-3 and the order dated 3.8.98, Annexure-5 to the writ petition are hereby quashed. The trial court is directed to decide the case on merit after affording opportunity to the parties. As the suit is of 1990, it will be appropriate that if possible, the same may be decided within a period of six months. The trial Court shall hear the matter on merit only on the condition if the petitioners pay Rs.2000/- as costs to the defendant-respondents.
W.P. No.257 of 1999
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