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1998 DIGILAW 388 (CAL)

Vidya Devi v. Bechan Show

1998-09-02

DEBI PRASAD SARKAR

body1998
Judgment This is an application under Section 115 of the Code of Civil Procedure directed against the order dated 9.8.96 passed by the learned Assistant District Judge. Durgapur in Misc. Appeal No. 19/1995 arising out of the Misc. Case No. 194/1993 connected with the Title Suit No. 136/1974. 2. The plaintiff-opposite party filed a suit under Section 36(1) of the Bengal Money Lenders' Act. Regarding substitution and some other ancillary matter the parties approached the Hon'ble Court and Hon'ble Justice Mr. Raj Khawa, since retired, disposed of the matter with a direction to send the record to the learned Trial Court for proceeding with the suit. The learned Trial Court on receipt of the record from the Hon'ble Court directed the office to notify the parties. But there is nothing on record to show that actually the parties were notified. The record was received by the lower Court from the Hon'ble Court on 20.3.92 and 27.4.92 was fixed for taking steps with direction to inform the parties but the parties were not informed. As a result, the learned Trial Court dismissed the suit for default on 27.4.92. On 13.9.93 the plaintiff-opposite party could know about the fact of dismissal for default and obtained an Information Slip. On 5.10.93 he filed the Misc. Case for restoration of the suit under Order 9 Rule 9 of the C.P.C. read with Section 151 of the C.P.C. along with an application under Section 5 of the Limitation Act. On 20.9.95 the learned Munsif dismissed the Misc. Case and also rejected the application under Section 5 of the Limitation Act. Against that order a Misc. Appeal being No. 19/1995 was filed by the plaintiff-opposite party and the learned Assistant District Judge disposed of that matter by setting aside the finding and decision of the learned Munsif and allowing the Appeal as well as the prayer for restoration of the suit. 3. On being aggrieved by this order the present revisional application has been filed by the defendant-petitioner, inter alia on the ground that the learned lower Appellate Court paned the order without obtaining sufficient explanation for the cause of delay and also on the ground that the rejection of the application under Section 5 of the Limitation Act is not appellable, but revision lies. It is further submitted by the learned Advocate for the petitioner that the order dismissing the Misc. It is further submitted by the learned Advocate for the petitioner that the order dismissing the Misc. Case under Order 9 Rule 9 of the C.P.C. is appellable no doubt but unless the application under Section 5 of the Limitation Act is allowed, in effect there was no Misc. Case under Order 9 Rule 9 of the C.P.C. and accordingly, there was no scope for filial any Appeal against the order of dismissal of that Misc. Case under Order 9 Rule 9 of the C.P.C. The learned Advocate, on the other side, has placed his argument in support of the order passed by the learned Appellate Court in his favour. 4 There are some undisputed facts that in connection with other matters the record same to the Hon'ble High Court and on disposal of the matter by this Court direction was given to send back the record to the Trial Court. It is also pointed out by the learned Advocate for the opposite party that the Trial Court fixed the suit for taking steps by the parties and directed the office to inform the parties. It is alleged that no information as required by Rule 370 of the C.R.O. was given to the opposite party at least. Naturally, although the record was received by the Trial Court from the High Court on 20.3.92, the parties specially the opposite party could not know about the date of arrival of the record. So, the opposite party could not be present on the date i.e. on 27.4.92 nor he could take any step as directed by the Trial Court. The ultimate result is the dismissal of the suit for default. 5. In the next part, we find that on 13.9.93 the opposite party obtained Information Slip and could how about the fate of the suit and on 4.10.93 he filed the Misc. Case for restoration of the suit under Order 9 Rule 9 read with Section 151 of the C.P.C. along with an application for condonation of delay under Section 5 of the Indian Limitation Act. 6. It is necessary, to consider whether there was negligence on the part of the plaintiff-opposite party in the matter or proceeding with the suit and if there was sufficient explanation for non-appearance on 27.4.92. 6. It is necessary, to consider whether there was negligence on the part of the plaintiff-opposite party in the matter or proceeding with the suit and if there was sufficient explanation for non-appearance on 27.4.92. It is submitted by the learned Advocate for the petitioner that there was no explanation and the learned Appellate Court did not consider that aspect. 7. But admittedly, the suit record was sent down under order of the Hon'ble Court and naturally, it was necessary to notify the arrival of the record at the Trial Court and there was also direction given to that effect by the Trial Court, but, that direction was not complied with by the office of the Trial Court. The plaintiff-opposite party, as such, could not know the date of arrival of the Lower-Court-Record and could not know that the Trial Court directed him to take steps on 27.4.92. This is sufficient explanation for non-appearance on that date. 8. Secondly, it is the specific case of the plaintiff-opposite party that on 13.9.93 he tried to obtain the information about the suit and only then he could know that it was dismissed for default on 27.4.92 and on 4.10.93 he filed the Misc. Case. Unless the plaintiff-opposite party could know about the fate of the suit that it was dismissed for default, it was not possible for him to take any step for restoration and the delay in filing the Misc. Case is sufficiently covered by such explanation. 9. No doubt, under Article 122 the limitation is 30 days from the date of the order. But such period of limitation can be extended if there is sufficient ground and that around is that the plaintiff-opposite party could not know about the fatal order dated 27.4.92 before 13.9.93. 10. From 13.9.93 be filed the Misc. Case within 30 days and as such that particular period from the date of his knowledge was within reasonable time and accordingly it is a fit case where the delay ought to have been condoned the learned Trial Court laboured under misconception of law and confusion of facts. The learned Appellate Court, on the other hand has rightly dealt with the matter. The petitioner referred to a decision of the Supreme Court reported in (1) JT 1997 (8) SC 189, where the delay was for 565 days and that delay could not be explained reasonably or satisfactory. The learned Appellate Court, on the other hand has rightly dealt with the matter. The petitioner referred to a decision of the Supreme Court reported in (1) JT 1997 (8) SC 189, where the delay was for 565 days and that delay could not be explained reasonably or satisfactory. So, the order of coadunation passed by the High Court was set aside by the Supreme Court. On the other hand, the plaintiff-opposite party has referred to a latest decision passed by the Supreme Court reported in (2) 1998 (2) SCC 206 , where it has been laid down that if there is no carelessness or negligence on the part of the party in proceeding with the suit, the party should not be penalised and legal remedy to which he is entitled should not be denied. This latest decision should prevail over the earlier decision. In the past also, the Apex Court tried to impress that the law of limitation being a penal provision, in one sense, it should be liberally interpreted to maintain the fountain flow of Justice. 11. Regarding the second point, I think, law permits Appeal to be converted into revision and if Appeal is not maintainable the Memo of Appeal can be treated as an application for revision. But in the instant case, that question cannot come up in the above findings, that the remedy is not barred by limitation and it is a fit case for condonation as such the order dismissing the Misc. Case under Order 9 Rule 9 of the C.P.C. was appellable. Nothing was wrong in the proceeding. In the above circumstances, the revisional case does not deserve any merit and accordingly, it is disposed of.