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2000 DIGILAW 65 (HP)

H. P. FINANCIAL CORPORATION v. PUNEET PRINTERS

2000-03-31

SURINDER SARUP

body2000
JUDGMENT (Surinder Sarup, J.): This order will dispose of the above application under order 9 Rule 4 C.P.C. praying for re-calling the order of dismissal of suit in default and restoring the same. 2. The facts giving rise to the present application are that the plaintiff - H.P. Financial Corporation, now the applicant, had filed civil suit No. 58 of 1992 in this court. A perusal of the record shows that a Bench of this Court, which was seized of the matter had finally heard the arguments and judgment had been reserved as per the order dated 14.9.1993. Subsequently, the same Bench passed an order dated 4.10.1993 indicating that in the suit defendants have been preceded against ex-parte and ex-parte arguments, after recording the evidence had been heard and judgment had been rescued. Since one of the points involved was the point of limitation, the Bench in order to seek certain clarification had asked the learned counsel for the plaintiff to attend the case in chambers. The counsel gave a statement at that time that a similar point of limitation was involved in a case which has been referred to a Division Bench of this Court and the same is pending. On his further request that the decision of the Division Bench in this behalf be awaited, the same was allowed. Thereafter, the case came to be listed on various dates before the same Bench and kept on being adjourned. Ultimately, the suit came, to be listed on 30.4.1996 before this Court. Since none was present, the suit was dismissed in default. It is in these circumstances that the present application came to be filed. 3. Notice of this application was issued to the defendants by an order of this Court dated 10.3.1999. In fact, it was not required to be issued because they had already been preceded against ex-parte earlier in the suit but due to the omission of the learned counsel for the applicant (plaintiff) to point out this fact to the court, notice in fact came to be issued. 4. On being served, the defendant-respondents have put in appearance through counsel and have filed their reply. A preliminary objection has been taken that the application is barred by limitation, hence liable to be rejected. 4. On being served, the defendant-respondents have put in appearance through counsel and have filed their reply. A preliminary objection has been taken that the application is barred by limitation, hence liable to be rejected. On merits, it has been stated that the defendants never received any summons of the suit from this Court nor they seen to have ever been served in accordance with law during the pendency of the suit, as such there was no occasion for them being proceeded ex-parte. It has, however, been stated that the defendants reserve their right to raise this issue at the appropriate stage. The rest of the part is just in the nature of controverting the averments made in the application. 5. Rejoinder has been filed. On behalf of the applicant, the preliminary objection raised in the reply has been controverted in the rejoinder by stating that the delay in filing the application has since been condoned by this Court, which fact is borne out by the order dated 10:3.1999 passed in OMP(M) No. 63 of 1998. On merits, the averments contained in the reply have been controverted and the averments made in the application have been re-iterated. 6. The learned counsel for the parties have been heard at length. The learned counsel for the defendant-respondents has mainly relied on case law. He was cited Krishnasami Panikondar v. Ramasami Chettiar - ILR 1918 (Madras Series) 412. In that case it was laid down that the admission of an appeal after the period of limitation has expired deprives the respondents of a valuable right by putting in peril the finality of the order in his favour. Such an order so made should, therefore, be treated as open to reconsideration at the instance of the respondent. 7. Reliance has then been place on the case of Balchand Prohit v. Sir Bejoychand Mahiab Maharajadiraj of Burdwan (AIR 1942 Calcutta 606). It has been held therein that an order granting an application under Section 5 of the Limitation Act, for extending time for filing Letters Patent Appeal under Clause 15 without giving the respondent an opportunity to present his case with regard to the prayer of the appellant for extension of the period of limitation, is irregular. 8. It has been held therein that an order granting an application under Section 5 of the Limitation Act, for extending time for filing Letters Patent Appeal under Clause 15 without giving the respondent an opportunity to present his case with regard to the prayer of the appellant for extension of the period of limitation, is irregular. 8. The third authority on which reliance has been placed on record by the defendant-respondents is Bikram Dass v. The Financial Commissioner, Revenue Punjab, Chandigarh & Ors., (AIR 1975 Punjab & Haryana -1- Full Bench). In that case the admitting Bench admitted the appeal after the period of limitation and it was held on the facts of that case that the Bench hearing the appeal has the jurisdiction to condone the delay after considering the sufficiency of cause for filing it beyond time. It was further held that in these circumstances the respondent will be entitled to question and contend before the Bench hearing the appeal, that there was no sufficient cause for condoning the delay. 9. In the case of Md.Abdul Kasim v. Chaturbhuj Sahai AIR 1922 Patna 47, it was held that the admission of the appeal subject to objection was irregular. An Appellate Court ought not to interfere with the discretion exercised by the Court below, merely because, upon the material before it, it might have arrived at a different conclusion. But where no discretion at all is exercised, it is certainly open to the party aggrieved to raise the question on appeal. These observations were made by the Patna High Court while considering the question of extending the limitation under Section 5 of the Limitation Act ex-parte. 10. The last authority, on which reliance has been placed on record on behalf of the defendant-respondents is Fulbarunessa v. The Assam Board of Revenue, Gauhati & Anr., (AIR 1974 Gauhati 50), according to which, where an appeal filed beyond time is admitted ex-parte after condoning the delay does not debar the other party from agitating the question of limitation at the time of hearing. It is open to the Court to re- open to the question and decide whether there is sufficient cause for admitting the appeal. 11. It is open to the Court to re- open to the question and decide whether there is sufficient cause for admitting the appeal. 11. In order to counter the point raised on behalf of the defendant-respondents that the delay in moving the application for restoration of the suit of the plaintiffs could not be condoned ex-parte, and having been thus condoned, it is open to the defendant-respondents to raise that question at the stage, when they have put in appearance after notice has been served on them, the learned counsel for the plaintiff-applicant has also placed reliance on certain authorities. 12. In Babu v. L. Dewan Singh & Ors., AIR 1952 Allahabad 749, it has been laid down that where a suit is dismissed under Order 9 Rule 3 and is resorted under Rule 4 the latter rule does not lay down that before a suit is restored a notice should be given to the defendant. A defendant is entitled to a notice only when a suit is dismissed in default under Rule 8 in his presence. 13. On behalf of the plaintiff- applicant, his learned counsel has also place reliance on the case of Pfitam Chand v. Shamsher Singh & Ors., (AIR 1986 Punjab & Haryana 300). It has been held therein that if a suit is dismissed under Order 9 Rule 3 C.P.C. in the absence of both the parties, the Court can restore the suit for sufficient cause without issuing notice to the opposite side. In the case of V. Bhagat v. Ms. Usha Bhagat (AIR 1987 Delhi 74), it has been held that when a suit was dismissed for non-appearance of the plaintiff in absence of defendant and application for restoration of the suit was made by the plaintiff, it is not necessary for the Court to issue notice of the restoration application to the defendant which act on the part of the court is absolutely without jurisdiction, illegal and not warranted by law. 14. In the light of the case law relied upon in support of their case by both i the parties, it is manifest that in the present case, the suit of the plaintiff was j dismissed in default on 30.4.1996 and neither the plaintiff or his counsel nor the defendant or his counsel were present. 14. In the light of the case law relied upon in support of their case by both i the parties, it is manifest that in the present case, the suit of the plaintiff was j dismissed in default on 30.4.1996 and neither the plaintiff or his counsel nor the defendant or his counsel were present. The said order would thus be deemed to have been passed by this Court under Order 9 Rule 3 C.P.C. That being the position, in view of the authorities cited by the learned counsel for the plaintiff-applicant and referred to above, it is not necessary to either to issue notice to the defendant or to hear him before restoring the suit for which the present application has been made under Order 9 Rule 4 C.P.C. It follows, therefore, that the authorities on which reliance is being placed on behalf of the defendant-respondents, are not relevant to the present case. It further means that the question whether the delay in making the application for restoration of the suit could be condoned ex-parte by this court is rendered merely academic. Moreover, the defendants were proceeded ex-parte by the order of this Court dated 10.3.1993 as they neither put in appearance nor any counsel on their behalf appeared on the date fixed for that purpose. Therefore, in view of the legal position, they cannot be allowed at this belated stage to question the propriety of the order of this Court condoning the delay in moving the application for restoration of the suit. 15. Now coming to the merits of the application. It is manifest from the contents of paras 4 and 5 thereof, that the suit was dismissed in default due to the mistake of the counsel for the plaintiff, who was under the bona fide belief that the case would come up for appropriate orders after point of limitation had been decided. The application is duly supported by the affidavit of a responsible functionary of the plaintiff-Corporation i.e. Shri B.S. Thakur, who is the Manager (Legal) of the said Corporation. There is nothing on record to doubt the correctness of the averments made in the application, and as regards the contents of para 5 thereof, the same are borne out from the record. 16. There is nothing on record to doubt the correctness of the averments made in the application, and as regards the contents of para 5 thereof, the same are borne out from the record. 16. In the totality of the circumstances of the case, as enumerated above, the plaintiff has shown sufficient cause within the meaning of order 9 Rule 4 C.P.C. for his non-appearance on 30.4.1996 when the suit was dismissed in default. 17. For the reasons recorded above, this application is allowed and the suit of the plaintiff-applicant is restored to its original number. There will be no order as to costs. Application Allowed