2005 PLP 2591 (YLR)

The petitioner instituted a suit for the recovery of Rs.2,93,000 against the respondent. It was contested by filing written statement. Issues were framed. The case was posted for petitioner's evidence. On 11-12-1996, it was dismissed in default. An application was submitted on the same day for restoration of the suit which, too, was dismissed on 23-5-1997. An appeal was preferred by the petitioner which came up for hearing before the learned Additional District Judge, who dismissed the same on 8-5-2000. The petitioner aggrieved of the orders of the learned Courts below assail the same in this civil revision.

2. The learned counsel for the petitioner argued that an application for restoration of the suit was filed on the same day and that law favours adjudication on merits rather than knocking out on the basis of technicalities.

3. Conversely, the learned counsel for the respondent argued that the application before the learned trial Court was not supported by an affidavit and the pleas raised in the application for restoration of the suit and in the revision petition are in-consistent with each other. He further adds that the orders of both the learned Courts below are concurrent, thus, immune from interference in exercise of revisional jurisdiction.

4. The suit was dismissed in default on 11-12-1996. An application for restoration of the suit was submitted on the same day i.e. 11-12-1996. Both the learned Courts below refused to allow restoration of the suit on the ground that no explanation has been given for non-appearance of the petitioner's learned counsel and no medical certificate has been submitted to substantiate illness of the petitioner. The petitioner in his application raised grounds which were controverted by the respondent. It needed resolution through recording of evidence. The learned trial Court did not consider necessary to frame issues and invite the parties to produce evidence in support of their respective pleas. Summary dismissal of the application for restoration was not called for, more particularly when the application was made on the same day. As to whether dismissal of the suit in default was deliberate and intentional, it required evidence. The civil suit was filed as back as in 1988. It could not be decided on merits on account of pendency of interlocutory matters.

5. Law favours adjudication on merits. Technical knockout to stifle valuable rights of litigant is not approved.

6. In view of the above discussion, this civil revision is allowed, the impugned order passed by the learned Civil Judge as well as of the learned Additional District Judge are set aside. The application for restoration of the suit is allowed subject to payment of cost to the tune of Rs.3,

000. The matter is remitted back to the learned trial Court to proceed on merits in accordance with law.

7. Since the suit pertains to the year 1988, it is desired that the learned trial Court shall make all efforts to dispose of the same by or before 31-7-2004 even, if he has to conduct day to day proceedings. M.I./H-16/L Revision accepted.