Energy Savers India Pvt Ltd & Ors. v. Sh. Ajit Lal Tandon

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 2014:DHC:4194 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