Dev Bala Sehgal vs Devinder Pal Sehgal

Bakhshish Kaur, J.—A suit filed by Devinder Pal Sehgal was dismissed in default on 24.8.1988 under Order 9 Rule 8 of the CPC (in short ''the Code). Thus, an application for the restoration of the suit under Order 9 Rule 9 of the Code was filed on 18.10.1988, which was allowed by the trial Court, by observing that the applicants-plaintiffs could not appear in the Court due to compelling reasons and circumstances beyond their control and their absence was not intentional.

The legality of the impugned order has been challenged on the ground that the application was not filed within the prescribed period of limitation. Secondly, the application could not be allowed on the supposed grounds of "in the interest of justice". The impugned order, it is averred, is not only perverse but against the law and it has caused a failure of justice.

I have heard Shri. R.K. Chhiber, learned counsel for the petitioner and Shri Chetan Mittal and Shri R.S. Rai, learned counsel for respondent Nos. 1 and 2 and 3 respectively.

Earlier application dated 18.10.1988 under Order 9 Rule 9 of the Code was dismissed in default for want of prosecution on 21.11.1994 and another application for its restoration was filed on 21.12.1994. The trial Court finding no merit in this application, dismissed it on 19.9.1995. Aggrieved by that order, a Civil revision No. 556 of 1996 was preferred by the plaintiff- petitioners in this Court and the same was allowed on August 27, 1996 by observing as under :-

"In view of the above, the present revision petition is allowed in part. The impugned order dated 19.9.1995 is partly set aside and the application dated 21.12.1994 for the restoration of the application dated 18.10.1988, which was dismissed on 21.11.1994, is allowed subject to payment of Rs. 1000/- as costs, and now the parties are relegated to the position as it stood on 21.11.1994. Now, the trial Court would proceed to decide the application dated 18.10.1988, moved by the plaintiffs under Order 9 Rule 9, C.P.C., for the restoration of the suit for want of prosecution on 24.8.1988. The parties through their counsel are directed to appear before the trial Court on 30.9.1996.

The trial Court, after the case had been remitted to it, decided the application vide the impugned order, hence the present Civil Revision. Order 9 Rule 9 of the Code reads as under :-

"Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

The requirement of this Rule is that the order of dismissal will be set aside only if the party is able to satisfy the court that there was sufficient cause for its/his non-appearance when the suit was called for hearing. Whether in the given case, the plaintiff-respondent (hereinafter referred to as ''respondent'') had been able to show a sufficient cause for his non-appearance.

It is well-settled that "sufficient cause" in each case is a question of fact. In the application under Order 9 Rule 9 CPC, the respondent has averred that the attorney of the plaintiff had deputed Shri Suresh Sharma, Advocate, to conduct their case. Unfortunately, on July 19/20, 1998 in the early hours of July 20, 1998, father of the counsel suffered heart problem. His father expired on August 13, 1988. Thus, non-appearance of the plaintiff or their authorised representative/counsel on July 20, 1998 was due to the compelling reasons and circumstances, which were beyond their control and the absence was not intentional. The plaintiffs are settled abroad at Thailand and they have appointed Gurdip Singh as their attorney. The aforesaid circumstances were considered sufficient by the trial Court for the restoration of the suit. The main challenge in the revision is that the application under Order 9 Rule 9 of the Code was not filed within the prescribed period of 30 days from the date of dismissal of suit in default. The suit was dismissed on 24.8.1988. The application was filed on 18.10.1988. Learned counsel for the respondent contended that a party should not be made to suffer on account of the negligence of his counsel and to support his argument, he has relied on Nar Singh Dass Khosla v. Union of India and Ors. (1981)83 PLR 717. It is observed that, it has been repeatedly held by the High Court that unless there has been gross negligence on the part of the party, he should not suffer for the negligence by his counsel, particularly when the counsel has filed an affidavit explaining his difficulty in not attending the case on a particular date. On the point of limitation, reliance is placed on Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram, Ahmedabad and Others, . Under headnote (d) it has been held as under :-

"The discretion u/s 5 of the Limitation Act has to be a judicial discretion and not an arbitrary one. Merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it. Procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material is on the record, it cannot promote the ends of justice, if that material is ignored and the relief refused to the appellant merely because he has not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of Section 5 also does not provide-that an application in writing must be filed before relief under the said provision can be granted."

He has also placed reliance on Mehar Singh Vs. Dhurender Singh and others, , wherein it was held that oral prayer for condoning delay could also be made, if sufficient cause was otherwise shown and in that case delay of one day in filing the appeal was condoned. The authorities cited by him relate to the condonation of delay u/s 5 of the Limitation Act by filing an application where Article 122 of the Limitation Act, 1963 governs such application, and for facility of reference, Article 122 reads as under :-

Description of suit

Period of Limitation

Time which period begins to run

" 122. To restore a suit or appeal or application for review of revision dismissed for default of CR No.397 of 1998 appearance or for want of prosecution or for failure to pay cost of service or process or to furnish security for costs.

Thirty days

The date of dismissal."

The application was certainly under Order 9 Rule 9 of the code for the restoration of the suit and the period of limitation for the filing of this application is 30 days from the date of dismissal. Thus, an application having been filed on 18.10.1988 for the restoration of the suit, was certainly filed beyond the period of limitation. Then, the Court is not entitled to extend the period of limitation by taking into consideration the circumstances which appear to operate harshly against the plaintiff as held in Debendra Nath Dutt Vs. Sm. Satyabala Dasi and Others, . In Kanai Lall Shaw Vs. Bhattu Shaw, it has been held that the application under Order 9 Rule 9 of the Code is governed by Article 122 of the Limitation Act. Similarly, in Radhanath Pathak and Anr. v. Bihar State Board of Religious Trusts, Patna, AIR 1968 Patna-110, it has been held that the Court cannot circumvent the law of limitation by exercising inherent powers u/s 151 CPC." Again, on the point of limitation, learned counsel for the petitioner has placed reliance on R.S. Lamba v. M.A. Kanth, AIR 1990 Jammu and Kashmir 79.

In Ashis Kumar Hazra Vs. Rubi Park Co-opeative Housing Society Ltd. and others, , their lordships of the Supreme Court held as under :-

"...Unless proper explanation is given, the valuable right has been created in favour of the respondents u/s 3 of the Limitation Act, it is the duty of the Court to ensure that unless proper explanation is given the valuable right cannot be defeated..."

It is abundantly clear that the application in hand for restoration of the suit was not filed within 30 days from the date of dismissal of the suit in default. The Court could not extend the time of limitation by bringing it under the principle of "interest of justice" and bypassing the mandatory provisions of Article 122 of the Limitation Act, 1963 Article 122 of the Limitation Act 1963 does not provide that the application has to be filed within 30 days from the day of knowledge of the suit having been dismissed in default. In fact, it is very specific and clear that it has to be counted from the date of dismissal. The application having been filed beyond the prescribed period of limitation and the limitation having not been condoned on a written application or an "oral request of the plaintiffs, the Court cannot restore the suit while invoking the inherent jurisdiction u/s 151 CPC. It is well-established that the express provisions of law cannot be over-ridden by invoking inherent jurisdiction.

Thus, in view of the aforesaid discussion, I am of the view that the impugned order has certainly caused failure of justice and defeated valuable right which has accrued to the other side by extending the period of limitation by exercising its inherent powers u/s 151 of the Code. Rather, it would not be out of place to mention here that the trial Court has not discussed the point of limitation while disposing of the impugned order, although in the reply a specific plea was taken that the application was liable to be dismissed being time barred. This aspect of the case has been totally ignored by the trial Court. Thus, the impugned order cannot be sustained, the same being perverse.

This Civil Revision is, therefore, accepted and the impugned order is set aside. Resultantly, the application under Order 9 Rule 9 CPC is dismissed.

Revision allowed.