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2021 DIGILAW 724 (RAJ)

Bagdi Ram v. Ramesh Chand

2021-03-30

ARUN BHANSALI

body2021
ORDER 1. This revision petition is directed against the order dated 03.12.2018 passed by the Civil Judge, Nimbahera, District -Chittorgarh ('the trial court'), whereby the application filed by the respondents for restoration of application under Order XXXIX, Rule 2A CPC, has been allowed. 2. The respondents had filed an application under Order XXXIX Rule 2A CPC alleging violation of temporary injunction granted by the trial court. During pendency of the proceedings, on 23.11.2016, when the matter was fixed for evidence of the respondents, neither they were present nor their counsel was present and as such the application filed under Order XXXIX, Rule 2A CPC was dismissed for non-prosecution. 3. Application was filed on 18.05.2017 seeking restoration of the proceedings with the submissions that as various cases between the parties were pending and in all the cases 23.11.2016 was fixed and the same were adjourned. However, qua the case filed under Order XXXIX, Rule 2A CPC, date in the matter was not taken by the counsel and as such for non-appearance of the counsel and the applicants, the application was dismissed. It was prayed that the same be restored. 4. A reply to the application was filed with the contentions that the application was highly belated without indicating any particulars and that the same was not accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay and, therefore, the application was liable to be dismissed. 5. The trial court by its order dated 03.12.2018 accepted the application filed by the respondents on payment of cost and made the same condition precedent for restoration of the proceedings. 6. Feeling aggrieved, the present petition has been filed. 7. Learned counsel for the petitioners emphasized that as the application was apparently barred by limitation and the same was not accompanied by application under Section 5 of the Limitation Act, the order impugned is bad in law and the same deserves to be quashed and set aside. 8. Submissions were made that the observations made the trial court that for non-filing of application seeking condonation of delay, the party cannot be deprived of justice on technical ground are ex-facie incorrect and as such the petition should have been dismissed on that count alone. 9. 8. Submissions were made that the observations made the trial court that for non-filing of application seeking condonation of delay, the party cannot be deprived of justice on technical ground are ex-facie incorrect and as such the petition should have been dismissed on that count alone. 9. Further submissions were made that even the indications made in the application did not made out a case of sufficient cause and as such application was liable to be dismissed as barred by limitation and on merits as well. 10. Submissions were made that only on account of hardship or injustice, the proceedings could not have been restored. 11. Reliance was placed on Damodaran Pillai & Ors. v. South Indian Bank Limited : AIR 2005 SCW 4603 . 12. Further submissions were made that application was restored on pre-condition of payment of cost, however, the cost has not been paid. 13. Learned counsel for the respondents contested the submissions. It was submitted that the trial court was justified in coming to the conclusion that even if the application seeking condonation of delay was not made, as respondents were able to make out a case for condonation and for restoration of the proceedings, the same could not be dismissed only on account of non-filing of application under Section 5 of the Limitation Act. 14. Reliance was place on Sesh Nath Singh & Anr. v. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Anr.: Civil Appeal No. 9198/2019, decided on 22.03.2021 by Hon'ble Supreme Court. 15. Further submissions were made that the cost as imposed was offered, however, the same was not accepted on account of pendency of the revision petition and, therefore, now the respondents have filed an application with the trial court to deposit the cost. 16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. The facts are not in dispute wherein the proceedings initiated by respondents under Order XXXIX, Rule 2A CPC were dismissed for non-prosecution as neither the counsel nor the respondents appeared before the court on 23.11.2016. 18. In the application filed seeking restoration, the reason indicated was that as in the various matter pending between the parties, dates were fixed on 23.11.2016 and the said matters were adjourned, however, counsel forgot to take date in the said application, which led to dismissed of the case for non-prosecution. 19. 18. In the application filed seeking restoration, the reason indicated was that as in the various matter pending between the parties, dates were fixed on 23.11.2016 and the said matters were adjourned, however, counsel forgot to take date in the said application, which led to dismissed of the case for non-prosecution. 19. It is also not in dispute that though the application was barred by limitation, the application seeking condonation of delay has not been filed alongwith the application. 20. The trial court after hearing the parties, came to the conclusion that the reason indicated for non-appearance was acceptable as the requirement of sufficient cause must be liberally construed and a party must not be deprived of contesting the case unless there is gross negligence or misconduct. 21. Regarding the aspect of non-filing of application seeking condonation of delay, the Court came to the conclusion that for the said technical reason, a party cannot be deprived of getting justice and, consequently, accepted the application. 22. On the aspect of insisting of filing application seeking condonation of delay and the fate of such an application/appeal, which is not accompanied by application seeking condonation of delay, it has been inter alia laid down by Hon'ble Supreme Court in the case of Sesh Nath Singh (supra) as under:- "63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application. 64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. 64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application." 23. In view of the law laid down by Hon'ble Supreme Court that there is no bar to exercise discretion to condone delay in absence of a formal application and that the Court can always insist that an application or an affidavit showing cause of delay be filed. 24. As the trial court has exercised its discretion in not insisting for an application/affidavit explaining the delay in filing the application, in view of the above judgment, it cannot be said that the trial court committed any error in passing the order impugned despite the fact that the application was delayed. 25. So far as the submissions made seeking to question the validity of the cause given for condonation of delay is concerned, as already noticed that the trial court has found the reason as justified and has therefore restored the proceedings to its original number. 26. Once the trial court has come to the conclusion that the proceedings were liable to be restored back, unless gross illegality is pointed out in exercise of discretion, the jurisdiction under Section 115 CPC cannot be invoked for setting aside an order restoring proceedings, which would result in depriving a party from contesting the case on merits. 27. 26. Once the trial court has come to the conclusion that the proceedings were liable to be restored back, unless gross illegality is pointed out in exercise of discretion, the jurisdiction under Section 115 CPC cannot be invoked for setting aside an order restoring proceedings, which would result in depriving a party from contesting the case on merits. 27. No such illegality has been pointed out in the order impugned. 28. So far as the non-payment of the cost in terms of the order impugned is concerned, the trial court had not fixed any time frame for payment of cost and as such it cannot be said that as the cost was not paid/deposited with the trial court on the purported refusal by the petitioners herein, the proceedings cannot be restored back. 29. So far as the judgment in the case of Damodaran Pillai (supra) is concerned, the same has no application to the present case, inasmuch as, the said case pertained to execution proceedings and the provisions of Section 5 of the Limitation Act have been expressly excluded in its application to execution proceedings and in those circumstances Hon'ble Supreme Court observed that hardship or injustice cannot be relevant consideration in teeth of statutory provision. 30. In view of the above discussion, no case for interference in the order impugned is made out, the revision petition has no substance, the same is, therefore, dismissed.