1. ' MUHAMMAD SHAFI SIDDIQUI, J.---Impugned in this Civil Revision Application is the order passed by the IIIrd Additional District Judge Hyderabad whereby the appeal of the appellant in respect of an interlocutary order was dismissed by an order dated 15-9-2009.
2. ' The brief facts as submitted by the learned counsel for the applicant are that the applicant file I F.C. Suit No, 468 of 1982 for declaration and permanent injunction in the Court of 1st Senior Civil Judge Hyderabad. It is submitted that the case is pending since 1982. The root cause of this revision is the Case diary dated 31-8-1988 whereby the suit was dismissed for non-prosecution. Pursuant to this dismissal the applicant moved an application under Order IX Rule 4 r/w section 151, C.P.C. For restoration of the Suit. It is further submitted by learned counsel that the said application was heard by 1st Senior Civil Judge Hyderabad and the application for restoration of the Suit was dismissed by an order dated 27-4-2004 being without merit.
3. ' The applicant then preferred appeal impugning the order dated 27-4-2004 which was heard by IIIrd Additional District Judge Hyderabad and after hearing both the parties, the appeal was dismissed after considering the material that was available on record.
4. ' Aggrieved of the concurrent findings of the two . Courts below, the learned counsel for the applicant has preferred this Revision Application on the ground that there was a sufficient cause for non-payment of cost therefore, the first court i,e, 1st Senior Civil Judge ought to have considered this while considering the application for restoration. It was further contended by learned counsel.
5. For the applicant that the court has committed illegality by not considering the application in which sufficient cause was explained. It is further contended that the reliance that has been placed by learned Trial Court whereby the suits' were earlier dismissed on many occasions such as 2-4- 1985, 31-8.1986, 31-1-1957 and 29-2-1987 and 31-8-1987 are irrelevant for the purpose of deciding the current restoration application. Learned counsel submits that the applicant was an old man and due to his old age he could not pay the cost within time and this should be sufficient cause for condonation of non-payment of cost.
6. ' Learned counsel for the respondent has argued that the impugned order as well as the order of the Trial Court are based on material available on record and that a proper order as required under the law have been passed by both the courts below. Learned counsel for respondent submits that no sufficient cause has been shown. In fact, the counsel appearing for applicant in the Trial Court and who is supposed to be vigilant and should have paid the cost as required, was also absent on 31-8-1988 nor he filed any affidavit mentioning reasons for his absence. Learned counsel further submits that no evidence has been placed on record that the counsel on 31-8-1988 was busy before another bench. Even in the grounds of appeal or the ground that have been raised in this revision application have not explained the reasons of his absence nor any medical report has been filed nor any list of cases that he was busy before another bench was furnished. He further submitted that apart from this current negligence the previous history which is full of negligence and default as such cannot be ignored. Learned counsel submits that the order that has been passed by the learned trial Court as well as Appellate are in accordance with law and no material irregularity have been committed by the two courts below hence no ground is available to invoke revisional jurisdiction.
7. ' Heard the learned counsel and perused the record.
8. ' It appears that this revision application .Has been preferred against the concurrent findings of the two courts below whereby initially the restoration application was dismissed by the trial Court and then the appeal by the learned IIIrd Additional. District Judge Hyderabad. At the very outset learned counsel was questioned as to what material irregularity was committed by the Appellate Court while exercising the jurisdiction. The learned counsel insisted that the very reason that the applicant was an old man and he forgot to pay the cost should have been sufficient to grant the application and this constitutes material irregularity while exercising the jurisdiction. I am afraid in my view to invoke the revisional jurisdiction, this does not constitute material irregularity. The powers which were exercised by the learned Trial Court as well as by the learned Appellate Court were available to them under the law which were exercised after 'considering the material available on record. In fact the order of the Trial Court is very exhaustive and also of the appellate.
9. The contention of the 4earned counsel for the applicant that the previous default whereby on more than three occasions the suit was dismissed should not have been considered has no force. No doubt it is the default of that particular day and incident that has to be seen but the history of previous defaults and negligence also contributes and cannot be ignored while deciding the current application for restoration which is also not supported by sufficient cause as neither the advocate has filed his affidavit nor he raised any such ground either in restoration application or before the Appellate Court.
10. ' Order IX, Rule 2 Provides power to learned trial Court to dismiss suit where summons not served on consequence of plaintiff's failure to pay costs. Order IX, Rule 2 is reproduced as under:-_- "2. Dismissal of Suit where summons not served in consequence of plaintiff's failure to pay costs.--- Where on the day so - fixed it is found that the summons has not been served upon defendant in consequence of the failure to the plaintiff to pay court-fere or postal charges (if any) chargeable in such service, the court may make the order that the suit be dismissed: ' Provided that no such order shall be made although the summons that has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent that he is allowed to appear by agent."
11. ' Perusal of the above rule shows that learned trial Court exercised jurisdiction in accordance with law. Hence neither learned trial Court nor Appellate Court exceed from their jurisdiction vested in it under the law. In order to perform substantial justice the court cannot completely shut its eyes with regard to previous defaults, thus, when it is said that the previous defaults cannot contribute while considering the current cause of default is perhaps depends upon the facts and circumstances of each case. No doubt it is the weight of the current cause which decides the fatc of the application but weight of the current cause has to be measured in the span of previous negligence and defaults and hence where the court .Finds the party habitual of such defaults, it has to be given weight as this is the time for .Substantial justice. Applicant who has been ignorant throughout and who's suit has been dismissed for defaults on several occasions deserves no sympathy. More importantly when learned trial Court and Appellate Court have exercised their jurisdiction in accordance with law after perusing the record, it does not call for any interference in revisional jurisdiction. Hence I find no merit and substance in this revision application, which is accordingly dismissed.
12. ' Consequently this revision application has no force which is hereby dismissed with no order as to costs.