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Himachal Pradesh High Court · body

2001 DIGILAW 175 (HP)

ANANT RAM NEGI v. STATE OF HP

2001-07-31

K.C.SOOD, KAMLESH SHARMA

body2001
JUDGMENT PER KAMLESH SHARMA, J. (ORAL):-The appellant is plaintiff, whereas respondents are defendants in Civil Suit No. 21-S/1 of 1997 filed in the Court of District Judge, Shimla and they will be referred to as such in this judgment. The plaintiff is aggrieved by the order dated 10.08.2000, whereby his application under Order 9 Rule o of the Code of Civil Procedure, for restoration of the suit was dismissed. 2. In the application under Order 9 Rule 9 of the Code of Civil Procedure, moved by learned counsel for the plaintiff it was stated that by bona fide mistake he had noted down the next date fixed for plaintiffs evidence as 27.11.1998 instead of 27.7.1998 and when he went to the court on 27.11.1998 to attend the hearing he did not find the case in the cause list and on enquiry he came to know that the case was listed on 27.7.1998 on which date it was dismissed in default for non-appearance of the plaintiff or his learned Counsel. The application is supported by the affidavit of learned Counsel for the plaintiff. 3. This application was resisted by defendants No. 3 and 4 only who besides taking preliminary objections that the application was hot maintainable being time barred, denied the allegation on merits. 4. The District Judge framed the following issues; 1. Were there sufficient grounds for non-appearance of the plaintiff/ applicant on the date when the suit was dismissed in default as alleged?.....OPA. 2. Relief 5. In support of the application Mr. L.S. Thakur, Advocate, Theog, who was learned counsel for the plaintiff appeared as AW-1 and reiterated the averments made in the application. According to him, he misheard the date fixed for the evidence of the plaintiff as 27-11-1998 instead of 27-7-1998. In his cross examination he has admitted that he could not produce any evidence to prove that he had wrongly noted the date of plaintiffs evidence as 27.11.1998 instead of 27.7.1998 as he had misplaced his diary for the year 1998. The defendant did not produce any evidence despite opportunities afforded to them. 6. The District Judge has dismissed the application merely on the ground that despite the objection raised by the defendants No. 3 and 4 that the application was time barred, no application under Section 5 of the Limitation Act was filed by the plaintiff for condonation of delay. 7. 6. The District Judge has dismissed the application merely on the ground that despite the objection raised by the defendants No. 3 and 4 that the application was time barred, no application under Section 5 of the Limitation Act was filed by the plaintiff for condonation of delay. 7. We have heard learned counsel for the parties and gone through the record. 8. The learned counsel for the plaintiff has urged that, in the facts and circumstances on record, the application was within limitation from the date of knowledge, as such, non-filing of the application under Section 5 of the Limitation Act could not be a ground for not considering the application under Order 9 Rule 9 of the Code of Civil Procedure on merit by the District Judge, we do not find any substance in this submission, as under Article 122 of the Limitation Act 30 days period of limitation has been prescribed from the date of dismissal for the restoration of a suit or appeal or application for review or revision dismissed for default for appearance and the application under Section 5 of the Limitation Act for condoning delay in filing the application under Order 9 Rule 9 Code of the Civil Procedure was required in order to show sufficient cause for not preferring the said application within the period of the limitation. In view of the clear position of Article 122 of the Limitation Act, it is well settled that limitation for filing application under Order 9 Rule 9 of the Code of Civil Procedure starts running from the date of dismissal not from the knowledge of date of dismissal. But in the peculiar facts and circumstances of the case in hand, we are not inclined to take pedantic approach, to hold that application under Order 9 Rule 9 of the Code of Civil Procedure was not maintainable in the absence of application under Section 5 of the Limitation Act as in the said application the learned counsel for the plaintiff would have averred the same fact which he has stated in the application under Order 9 Rule 9 Code of Civil Procedure. 9. From the facts on record it is clear that the reason for non-appearance of the plaintiff or his learned counsel on 27.7.1998 was that learned counsel for the plaintiff had by mistake noted down the date as 27.11.1998 instead of 27.7.1998. 9. From the facts on record it is clear that the reason for non-appearance of the plaintiff or his learned counsel on 27.7.1998 was that learned counsel for the plaintiff had by mistake noted down the date as 27.11.1998 instead of 27.7.1998. If despite the objection raised by defendants No. 3 and 4 in reply to the application learned counsel for the plaintiff did not care to move application under Section 5 of the Limitation Act, the plaintiff should not suffer. Otherwise also, the court should take liberal view in considering the application for restoration of the suit on record that plaintiff or the appellant has been negligent. Keeping in view that most of the litigants are poor, non-literate or semi-literate persons, unaware of the basic knowledge of substantive and procedural law, they should be given chance to pursue their suit or appeal. In the present case, the plaintiff was not present on 19.6,1998 when issues were framed and the suit was listed for recording his evidence on 27.7.1998 and there is nothing on record to the show that he was informed of the said order by his learned counsel. For this reason, the application under Order 9 rule 9 of the Code of Civil Procedure was filed by the learned counsel for the plaintiff supported by his own affidavit as the averments made therein were in his personal knowledge and the plaintiff was not in picture in any manner. But, if the suit is not restored it is he who will suffer for no fault of his. 10. So far the merit of application under Order Rule 9 of the Code of Civil Procedure is concerned, the statement of learned counsel for the plaintiff has not been rebutted and there are no reasons to disbelieve it. Had he correctly noted the date as 27.7.1998, he would have appeared on that date and would not have waited up to 27.11.1998. 11. The result of above discussion is that there is merit in this appeal and it is allowed and the impugned order dated 10.8.2000 passed by District Judge, Shimla, is set aside. Had he correctly noted the date as 27.7.1998, he would have appeared on that date and would not have waited up to 27.11.1998. 11. The result of above discussion is that there is merit in this appeal and it is allowed and the impugned order dated 10.8.2000 passed by District Judge, Shimla, is set aside. The application filed by the plaintiff under Order 9 Rule 9 of the Code of Civil Procedure for setting aside the order dated 27.7.1998 in allowed and Civil Suit No. 21-S/1 of 1997 is restored to the file of District Judge Shimla, who is directed to proceed with the trial of the Civil Suit in accordance with law. The parties are directed to appear before the District Judge on 20th August, 2001. Records be sent back immediately.