1994 PLP 898 (CLC)

‑‑‑‑ Invocation of jurisdiction‑‑‑Where jurisdiction of Court was invoked by a party, it was for the party to be vigilant and careful in prosecution or defence, otherwise party had to undergo punishment of dismissal in default or of striking off the defence. Ashfaq Hussain Kiani for Appellants. Sardar Khan, A.‑G. for Respondents. This appeal is directed against the order of the learned District Judge, Muzaffarabad, passed on July 20, 1992, whereby an application filed by the appellants for restoration of the reference dismissed in default, was rejected.

2. The brief facts of the case are that a reference was filed against an award by the appellants before the District Judge, Muzaffarabad, on.17‑9‑1988. On 12‑7‑1989, the respondents were ordered to file objections to the reference application. This was ordered in presence of the Counsel of the parties and the text date was fixed as September 13, 1989. None was present on behalf of the appellants on that day and the case was again adjourned to October 9, 1989 and then to November 3, 1989. No one appeared on behalf of the appellants on both these dates. The learned District Judge was constrained to dismiss the reference application on November 3,1989, in default.

3. On August 16, 1990, an application for restoration of the reference was moved by the appellants. The same was also dismissed on the ground that the application was hopelessly time‑barred. Hence this appeal. 4. 1 have heard the learned Counsel for the parties and have gone through the record. The two main contentions have been raised by the learned Counsel for the appellants, for restoration of his reference application and setting aside the order of the learned District Judge. The first contention raised by the learned Counsel is that two files of the similar title were pending in the Court and the counsel had been appearing in the other one, under the impression that it is the one in which he is engaged; and (ii) that the reference cannot be dismissed in default as the Reference Judge is bound to answer the reference as submitted by the Collector, Land Acquisition. In support of this contention, the learned counsel has placed reliance on AIR 1944 Madras 539. 5. 1 have considered both the contentions of the learned Counsel for the appellants but am unable to agree with either of them as both are devoid of force, factually as well as legally.

6. So far as the first contention is concerned, the appellants have failed to lead any proof in support of this contention in spite of the repeated opportunities granted by the District Judge. As the entire edifice of this ground is wholly on the fact which needed proof and due to failure of the appellants ,to substantiate the ground by proof, the same cannot be accepted. Moreso, when the file which is dismissed in default, also smacks negligence of the appellants as well as their Counsel. The appellants as well as their Counsel had been absent on the two earlier hearings of the case, therefore, it can hardly be believed that the subsequent conduct of the appellants or their counsel would have been otherwise. Had it had been so, the proof would have been led in this behalf. Moreover, the ground itself implies the negligent conduct; to be indolent about the title of the case and without bothering to enquire as to what proceedings were being conducted in the case, the contention cannot be accepted that the Counsel for the appellants had been appearing in good faith in the other case which, according to the appellants, carried the same title.

7. So far as the second contention is concerned, that also cannot be accepted as whole truth. No doubt, the District Judge has to answer the reference as submitted to him by the Collector but the reference is made on initiating the proceedings by the appellants and it was for the appellants to be vigilant and to be carefully perceived, but they had failed. The proceedings before the District Judge are of civil nature and the Code of Civil Procedure has to be applied in this case. Section 141, C.P.C. postulates that proceedings adopted for the trial of the suit had to be applied in the case of reference as well as, after the reference is entertained, the other party is called upon to file the objections and then after striking the issues, the parties are asked to lead their evidence. The entire process is that of trial of a civil suit. The dismissal in default of the proceedings or the restoration of the dismissed proceedings is a part of the civil proceedings. The contention of the learned Counsel for the appellants, therefore, cannot be accepted. Even otherwise, dismissal in default and other ancillary proceedings are part of the normal functioning of the Court unless the Court takes notice of a particular event itself, in which case the Court should see that the matter reaches the logical conclusion. In other cases, where the jurisdiction of the Court is invoked by a party, it is for the party to be vigilant and careful in prosecution or defence, otherwise the party has to undergo the punishment of stringent provisions of dismissal in default or of striking off the defence. In view of the above discussion, finding no force in the appeal, it is hereby dismissed, but in view of the circumstances of the case, no order as to costs. H.B.T./29/H.CA. Appeal dismissed.