1. This is an application for revision directed against an order passed by the Judge of Small Cause Court, Aligarh, rejecting the plaintiff's application for restoration of his suit which had been dismissed in default of appearance. The suit was fixed for 17th July 1931. The learned Judge says in his order rejecting the application for restoration that the applicant was called out twice, but did not appear. This may be true; but there can be no denying the fact that, on the suit being dismissed for default, he made immediate preparation for an application for restoration being filed. He swore an affidavit on the same date between 12 and 1 o'clock, which stated that the applicant was present when the case was called on, but went to search his vakil, who was subsequently found busy in another Court and could not attend, and that the applicant learnt on his return that the suit had been dismissed in default of his appearance. No counter-affidavit was put in by the opposite party. Prima facie the allegations contained in the plaintiff's affidavit are not open to any suspicion. The learned Judge however thought that the applicant had presented “a made-up plea.” He does not refer to any circumstances on which such conclusion is based. He has also remarked that:
“he told litigants and their lawyers so often that they are not to run away when they are called into Court for their case. They do not seem to listen to it. In this case however as stated by the opposite party in his reply, the applicant was not at all present when his case was called up for hearing.”
2. I do not understand the significance of the first portion of the remark quoted above. Unless the learned Judge accepted the affidavit filed by the applicant, he could not be one of those litigants who did not act according to the instructions which the learned Subordinate Judge had issued to the litigants and the lawyers. On the other hand, the learned Judge thinks that the applicant was not at all present when the case was called on more than once. This is apparently based on what the learned Judge calls “reply” of the opposite party. I find no counter-affidavit on the record, nor any reply in the proceedings of the Court or otherwise. This is probably what the defendant verbally represented to the Court.
3. In the face of the applicant's affidavit, the learned Judge should not have acted on statements of the kind made by the defendant. I am satisfied that the circumstances in which the applicant's suit was dismissed in his absence are correctly stated in the affidavit. The question is whether they constitute sufficient cause for the plaintiff's non-appearance. While litigants would do well to act as the learned Judge says they should, we cannot ignore the somewhat natural tendency among the litigants of hurrying to their pleaders when their cases are called on. They expect to find their pleaders and take them in time for the hearing. In most cases, the litigant himself or his pleader appears in Court shortly afterwards. In some cases the pleader is not forthcoming or is busy elsewhere and if the case is dismissed in the meantime, the rule as to restoration should not be so rigorously enforced as to sacrifice the ends of justice which it is intended to sub-serve. Award of reasonable costs to the opposite party will in general be found to be a sufficiently deterrent penalty on one side and compensation on the other. I should not be understood as laying down a rule of thumb applicable to all such cases. Each case has to be decided on its own facts, but the exercise of discretion should not be divorced from equitable considerations arising from those facts.
4. In view of all the circumstances of the case, I allow this revision and set aside the order of the lower Court refusing to restore the applicant's suit dismissed in default. The learned advocate who appears for the applicant does not press for costs. No order is therefore needed in that respect. The applicant's suit shall be reinstated and disposed of on the merits.
P.N/R.K
5. Revision allowed.