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2003 DIGILAW 185 (GAU)

Pradip Kumar Dohotia v. Rustam Ali

2003-05-02

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. The instant petition poses a short but an interesting question. By the order impugned herein the learned Court below has rejected the application filed by the present Petitioner for restoration of his suit which had been dismissed for default, on the ground that the application for restoration was time barred and no separate application had been filed for condonation of delay. Is a separate application explaining the cause for the delay in filing the restoration application necessary, if the application contains the necessary facts and materials to that effect is the question which pleads to be answered in the instant revision petition. 2. I have heard Mr. D.C. Mahanta, learned Senior counsel, assisted by Miss C. Bhattacharjee, Advocate for the Petitioners and Mr. G.C. Phukan, Advocate for the opposite party. 3. The relevant facts lie in a short compass. The predecessor in interest of the revision Petitioners had filed a suit being T.S. No. 38/93 in the Court of the learned Munsiff No. 1 Golaghat against the predecessor in interest of the present opposite party praying for restoration of possession of the land mentioned therein. The suit was posted on 25.4.94 for steps. As none of the parties was in attendance, the learned trial Court by order dated 25.4.94, after recording that the parties were not present and that no steps had been taken directed that the suit be filed. The suit was, therefore, dismissed for non-prosecution. Later, on 4.7.94 an application was filed by the predecessor in interest of the present Petitioners for restoration of the suit by setting aside the above order. The application was under Order 9, Rule 4 of the Code of Civil Procedure, read with Section 151 of the code. It was stated therein that the predecessor in interest of the Petitioners had engaged one Sri S.N. Saikia as his advocate to conduct the suit on his behalf and taken necessary steps therein and that he fully relied on the said Advocate in all matters relating to the suit. It was further stated that the predecessor in interest of the Petitioner was at the relevant time suffering from Eye troubles for which he had to undergo an operation and was advised rest for few months. He also enclosed a certificate indicating the medical advice for his rest upto 1.7.94. It was further stated that the predecessor in interest of the Petitioner was at the relevant time suffering from Eye troubles for which he had to undergo an operation and was advised rest for few months. He also enclosed a certificate indicating the medical advice for his rest upto 1.7.94. The application disclosed that the predecessor in interest of the Petitioner had come to know from one Syed Md Ilias, a Defendant in the suit that the suit was dismissed on 25.4.94 in the absence of the parties. Further enquiries revealed that the Advocate engaged by the predecessor in interest of the Petitioner had expired before the aforementioned date on which the suit was dismissed. It was therefore, pleaded in the petition that the omission to take steps on 25.4.94 was neither wilful, nor deliberate and that if the suit was not restored, the predecessor in interest of the Petitioners would suffer irreparable loss and prejudice. The application was supported by a verification of the applicant. 4. A written objection was filed on behalf of the Defendant, the predecessor in interest of the present opposite party. Though the grounds taken in the application were specifically not denied therein, it was contended that the application was barred by time and therefore, should be dismissed on that ground alone. It was further pleaded that the Advocate engaged in the predecessor in interest of the Petitioners had expired in the month of November, 1993 and that the said fact was known to applicant, the Plaintiff. Moreover, there was other advocates engaged by him in the suit who could have taken necessary steps on the date on which the suit was dismissed for non-prosecution. The written objection was also supported by a verification. 5. The parties thereafter examined witnesses in support of their respective contentions. After the recording of the evidence and hearing of the arguments an application was filed on behalf of the predecessor in interest of the Petitioners permitting him to file an application for condonation of delay in filing the restoration application. The trial Court by order dated 17.6.96 rejected the said application mainly on the ground that the same had been filed belatedly when the final order was to be passed shortly on the application for restoration. On the next day, i.e. 18.6.96, the application for restoration which had been registered as Misc. The trial Court by order dated 17.6.96 rejected the said application mainly on the ground that the same had been filed belatedly when the final order was to be passed shortly on the application for restoration. On the next day, i.e. 18.6.96, the application for restoration which had been registered as Misc. Case 15/94 was rejected solely on the ground that it was barred by limitation. Both these orders dated 17.6.96 and 18.6.96 are now challenged in the instant proceeding. In the meantime, the original Plaintiff and Defendant have expired and they have been substituted by their heirs and legal representatives, the parties presently before this Court. 6. Mr. D.C. Mahanta learned Senior counsel for the Petitioners strenuously argued that the learned trial Court had acted illegally and with material irregularity in rejecting the application for restoration on the ground that it was time barred, by leaving out of consideration the essential facts contained in the said application as well as the relevant evidence on record which sufficiently explained the reason for the delay in filing the same as well as the cause of the default on 25.4.1994. According to the learned senior counsel, there was no necessity of filing a separate application for condonation of delay along with the restoration application as the necessary facts explaining the delay had already been incorporated in the restoration application. He contended that the grounds put forward in the restoration application had not been specifically controverted in the written objection and therefore, the learned Court below in refusing to restore the suit by overlooking that aspect of the matter as well as the evidence on record had failed to exercise a jurisdiction vested in it by law. He further contended that the order passed on 25.4.94 dismissing the suit for non-prosecution was on the face of the record unsustainable in law, inasmuch as the suit on that date was not fixed for hearing and on that ground alone the order of dismissal ought to have been recalled by the trial Court. In support of his argument that a separate application for condonation of delay in filing the restoration application was not called for, the learned Senior counsel has placed reliance on the following two authorities: 1) AIR 1978 Pat 253 The Bihar State Electricity Board, Patna, Petitioners v. Pawan Kumar Khetan and ors. Opposite parties. In support of his argument that a separate application for condonation of delay in filing the restoration application was not called for, the learned Senior counsel has placed reliance on the following two authorities: 1) AIR 1978 Pat 253 The Bihar State Electricity Board, Patna, Petitioners v. Pawan Kumar Khetan and ors. Opposite parties. 2) AIR 1996 M P 151 Suresh Kumar and Ors. Appellant v. Firm Kurban Hussain Taiyab Ali and ors. Respondents. 7. Refuting the above contention Mr. Phukan learned Counsel for the opposite party argued with equal force that a separate application for condoning the delay in filing the restoration application was the requirement of law and therefore the learned trial Court was perfectly justified in rejecting the restoration application on the ground that it was barred by time. According to him, the impugned orders do not suffer from any error of jurisdiction and therefore, this Court in exercise of its revisional power under Section 115 Code of Civil Procedure would not interfere with the same. 8. Before weighing the rival contention of the parties, it would be appropriate to refer, at the out set, to the decisions cited at the bar. 9. In the Bihar State Electricity Board, Patna v. Pawan Kumar Khetan and Ors. (supra), the suit of the Petitioner was dismissed for default. The restoration application filed beyond time contained statements explaining the delay as well. No separate application for condonation of delay was filed. The restoration application also got dismissed for non prosecution The Court however, while dismissing the restoration application also mentioned that it was rejected being time barred. An application under Section 151 of the Code of Civil Procedure, for review of the order was filed. The said application was also rejected on the ground that the Petitioners could have moved the higher Court against the dismissal of the restoration application. The High Court in the above backdrop of facts observed that no appeal lay against the order rejecting the restoration application and in absence of any evidence recorded in support of the pleas taken therein, no effective relief could have been granted in the revision petition that could have been filed against the said order and therefore the application under Section 151 Code of Civil Procedure for reviewing the order rejecting the restoration application was the appropriate remedy. Having held so, the High Court set aside the impugned order rejecting the Section 151 Code of Civil Procedure application and remanded the matter back to the learned trial Court for disposing of the restoration application on merit. This decision, however, is not directly on the issue as to whether a separate application for condonation of delay is necessary to be filed along with a time barred restoration application. 10. In Suresh Kumar and Ors. Appellants v. Firm Kurban Hussain Taiyab Ali and Ors. (supra), the facts were similar to those in the case in hand. The suit of the Appellants being dismissed for default, an application for restoration thereof was filed. The learned trial Court without issuing any notice on the restoration application dismissed the same on the ground that it was time barred and no formal application under Section 5 of the Limitation Act, 1963 had been filed for condoning the delay in filing the same. It was inter alia contended before the High Court that a formal application under Section 5of the Limitation Act, 1963 was not necessary, if the essential facts required for condonation of delay were already on record. The High Court, while upholding the above contention held that if from the facts presented before it, sufficient cause for the delay can be gather no formal application under Section 5 of the Limitation Act, 1963 would be required. It, however, observed that in case the Court was of the view that the delay cannot be condoned in absence of a formal application, a due opportunity has to be granted to move such an application explaining the cause for delay seeking condonation thereof. The matter was, therefore, remanded to the learned trial Court to dispose of the same after proving the opportunity to the Appellant to file an application under Section 5 of the Limitation Act. 11. The recorded facts may briefly be recalled. On the date on which the suit was dismissed for default it was fixed for taking necessary steps and not for hearing. Both the parties were absent. The application for restoration thereof was apparently beyond time. It, however, contained the necessary facts which can be reasonably linked up with the cause for the delay as well as for the default. The Advocate appointed by the Plaintiff had expired before the date on which the suit was dismissed for default. Both the parties were absent. The application for restoration thereof was apparently beyond time. It, however, contained the necessary facts which can be reasonably linked up with the cause for the delay as well as for the default. The Advocate appointed by the Plaintiff had expired before the date on which the suit was dismissed for default. The predecessor in interest of the Petitioners the original Plaintiff, was ailing and had undergone an operation and on medical advice was on rest. The original Plaintiff and his witnesses Syed Md Ilias have proved the statements made in the restoration application. 12. The main trust of the objection of the original Defendant was that the restoration application was barred by time. The other grounds set out therein were not categorically controverted. The evidence adduced in opposition also could not dislodge the grounds taken in the restoration application. Though not called for in exercise of my revisional jurisdiction. I have perused the evidence for and against the prayer for restoration of the suit. The original Plaintiff in his evidence had deposed that late S.N. Saikia was the Advocate engaged by him to conduct the suit and that due to eye troubles he could not appear in Court. He proved the medical certificates Ext. 1 and 2 to the said effect. He further stated that he came to know about the dismissal of the suit only on 24.6.94 from Syed Md. Alias and thereafter about the death of his Advocate. In the cross examination he stated that he had not engaged any other Advocate to conduct his suit along with late S.N. Saikia. PW-2 Syed Md Ilias supported the version of the original Plaintiff stating that on 24.6.94 he went to the house of the original Plaintiff and found him confined to bed with eye troubles and he informed him that the suit was dismissed and further that his Advocate S.N. Saikia had expired. The original Defendant though made an endeavor in his deposition to establish that the original Plaintiff had engaged two Junior Advocates along with late S.N. Saikia, he could not name them. He conceded that he was not present when the original Plaintiff had executed the Vakalatnama for engaging his Advocate in the suit. DW-2, H. Ali in his evidence stated that the original Plaintiff was not bed ridden at the relevant time. 13. He conceded that he was not present when the original Plaintiff had executed the Vakalatnama for engaging his Advocate in the suit. DW-2, H. Ali in his evidence stated that the original Plaintiff was not bed ridden at the relevant time. 13. The learned trial Court, in passing the order dated 18.6.96 did not consider the evidence and the restoration application was dismissed only on the ground that it was barred by time. The application filed under Section 151 Code of Civil Procedure praying for an opportunity to file an application for condonation of delay was also rejected on the ground that in the meantime, the evidence in connection with the restoration application had already been recorded and arguments had been heard. 14. Whether separate application in the above facts and circumstances along with restoration application was necessary Under Section 5 of the Limitation Act. 1963? The said provision of the aforementioned Act does not indicate any such requirement. What is imperative is the satisfaction of the Court that the applicant had sufficient cause for not making the application within the time prescribed by law. It, however, does not follow as a general proposition that a separate application for condonation of delay in filing any appeal or application contemplated under Section 5 of the said Act would not be necessary under all circumstances If the appeal or the application envisaged under Section 5 of the Act does not contain the necessary facts in support of the prayer for condonation of delay, a separate application furnishing the same would be a must. While there is no escape from the legal proposition that an appeal or an application as comprehended under Section 5 of the Limitation Act, 1963 filed beyond the period prescribed can be admitted only if the delay is condoned and that for the said purpose the Appellant or the applicant concerned has to satisfy the Court with the essential facts that he was prevented by sufficient cause from filing the appeal or application in time, to insist for a formal application to that effect in all cases, where the essential facts constituting the sufficient cause are already on record would amount to conceding primacy to technical considerations over the rules of substantive justice. To dismiss a legitimate cause, in such an eventuality, only on a technical consideration that a separate application had not been filed for condoning the delay when the relevant facts to that effect are already on record would not be consistent with the fundamental principles of administering justice. If in a given case, such an application is considered necessary though the relevant materials are already on record and the applicant in spite of his default, seeks an opportunity to file the same, in the interest of justice, the Court should provide him with that opportunity before rejecting his case as time barred. The spirit and purpose of Section 5 of the Limitation Act, 1963 is to provide a real and meaningful opportunity to the Appellant/applicant to satisfactorily explain the delay and the provision cannot be reduced to a dead letter by mechanically denying him the said opportunity. 15. The question which fell for consideration before the Apex Court in the case of the State of Rajasthan, Appellant v. Ramdeen and Ors. Respondents, reported in AIR 1977 SC 1328 was whether a petition to leave to appeal under Section 378(3) of the Code of Criminal Procedure, 1973 containing all facts and other requisites for a memorandum of appeal could be construed to be a composite application for leave as well as for the appeal so as to obviate the necessity of filing a separate application for condonation of delay, in case the leave was granted beyond the prescribed period within which the appeal was to be filed. In that case, a petition for leave to appeal against the order of acquittal passed on 30.3.74 was allowed granting leave on 16.8.74. The petition of appeal was thereafter filed on 10.9.74 which was clearly beyond the period of 90 days prescribed for preferring the appeal. No application for condonation of delay was also filed. On objection being raised by the Respondents to the above effect indicating further that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining the leave of the High Court, the appeal was dismissed as time barred. No application for condonation of delay was also filed. On objection being raised by the Respondents to the above effect indicating further that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining the leave of the High Court, the appeal was dismissed as time barred. The Apex Court in the said facts held that a composite application giving necessary facts and circumstances of the case along with the grounds to be urged in the appeal with a prayer for leave to entertain the appeal would be in order and that it was not necessary as a matter of law that an application for leave to entertain the appeal to be lodged first and only after grant of leave by the High Court, an appeal may be preferred against the order of acquittal. It held that the application for leave to appeal filed by the State in that case was equivalent to a memorandum of appeal under Section 378(1) read with Sub-section (3) of that Section of the Code and that there was no need for presentation of the second petition of an appeal nor for an application for condonation of delay in the case. It ruled that the petition in appeal had been filed within time and that the dismissal thereof being time barred was erroneous. 16. The above decision of the Apex Court though rendered in a different context in my view carries the underlying principle relevant for the purpose of resolving the present controversy. While I respectfully subscribe to the view expressed by the Apex Court as above I am inclined to concur with the view taken by their Lordships of the Madhya Pradesh High Court in Suresh Kumar and Ors. v. Firm Kurban Hussain Taiyab Ali and Ors. (supra) I, therefore, hold that the learned Court below was not justified in the attending facts and circumstances in rejecting the application for restoration only on the ground that it was barred by time. It further fell into error in rejecting the application seeking leave to file a formal application for condonation of delay, though belatedly. 17. What, therefore, should be next course of action? The suit is of the year 1993. I am, therefore, not inclined to remit the matter to the learned trial Court for a fresh disposal of the application for restoration. 17. What, therefore, should be next course of action? The suit is of the year 1993. I am, therefore, not inclined to remit the matter to the learned trial Court for a fresh disposal of the application for restoration. As indicated hereinabove, I have examined the materials on record in support of the prayer for recalling the order of dismissal of the suit. On a consideration of the entire facts and circumstances of the case as well as the evidence of record, I am inclined in the interest of justice to allow the prayer for restoration of the suit. The Petitioners have been able to make out sufficient cause for the delay in filing the restoration application as well as the default on 25.4.94. No deliberate negligence, inaction or laches on the part of the original Plaintiff resulting in dismissal of the suit or in the matter of filing the restoration application is discernible. The interest of justice, therefore, demands that the suit be decided on merit. In the attending facts and circumstances, I am of the view, that the learned trial Court in passing the impugned orders, had acted illegally and with material irregularity in the exercise of its jurisdiction calling for interference by this Court. 18. The petition is thus accepted and is allowed. The impugned orders dated 17.6.96 and 18.6.96 are hereby set aside. The Title suit No. 13/83 is restored to file by setting aside the order dated 25.4.94. The suit is remitted to the learned trial Court for disposal on merit. As the suit is of the year 1993, the learned trial Court is requested to make an endeavour to dispose of the same as expeditiously as possible. In the facts and circumstances of the case, there would be no order as to costs. Petition allowed.