PAVANI ENGINEERING & TRADING CO. PVT. LTD. v. D.D.A.

1. Whether the reporters of local papers may be allowed to see the judgment? No

2. To be referred to the reporter or not? No

3. Whether the judgment should be reported in the ‘Digest’? No REKHA SHARMA, J. (ORAL) This appeal has been preferred against the order of an Additional District Judge, Shri Girish Kathpalia dated July 23, 2007 dismissing the application of the appellant for restoration of the suit which was dismissed in default on May 28, 2004. Along with the application for restoration, an application under Section 5 of the Limitation Act was also filed which too has been dismissed by the impugned order. It is not in dispute that the appellant had filed a suit for specific performance of an agreement to sell dated April 27, 1984 initially in this Court which was transferred to the District Court on account of the pecuniary jurisdiction of this Court having been raised. The transfer order directed the parties to appear before the District Court 2010:DHC:1615 on November 27, 2003. However, the appellant failed to appear on the said date whereupon the concerned Court issued notices to the parties for appearance. It is also not in dispute that the appellant was not served with the notices of appearance. The suit, as has been noticed above, was dismissed in default on May 28, 2004. It is submitted by learned counsel for the appellant that as admittedly the appellant was not served with the notices of appearance issued by the transferee Court, the suit could not have been dismissed in default. On the other hand, it is submitted by learned counsel for the respondent-DDA that if the appellant was not served with the notices of appearance, it has to blame itself for it had failed to place on record its changed address. Be that as it may, the fact remains that the appellant was not served with the Court notices and as per the counsel for the appellant, the appellant was under the impression that the suit was being taken care of by the then counsel representing the appellant in the suit. Having regard to the aforementioned facts, I am of the view that interest of justice demands that the suit should proceed on merits. Hence, I set-aside the order dated July 23, 2007 subject to the appellant paying cost of Rs.50,000/-. The parties are directed to appear before the concerned Court on April 19, 2010. The appeal is disposed of.

REKHA SHARMA, J. MARCH 18, 2010 ka