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Judgment
M. Venugopal, J.—The O.S.A. No. 352 of 2001 is filed by the appellants/plaintiffs/applicants as against the orders passed by the learned
Single Judge on 30.6.2000 in dismissing the Application No. 2485 of 1998 in C.S. No. 140 of 1986.
The appellants/plaintiffs/applicants filed C.S. No. 140 of 1986 praying for a judgment and decree passed against all the defendants or such of
the defendants as this Court finds liable to pay Rs. 15,92,414.88 to the plaintiff with interest at 20% per annum from now till date of decree and
thereafter at 6% from the date of decree till the date of realisation and for costs.
The suit in C.S. No. 140 of 1986 filed by the appellants/plaintiffs/applicants was dismissed for default, on account of the appellants/plaintiffs not
taking any steps.
The appellants/plaintiffs filed Application No. 2485 of 1998 in C.S. No. 140 of 1986 praying to set aside the order of dismissal of the C.S. No.
140 of 1986 on 10.11.1997 and the same was dismissed by this Court on 30.6.2000.
Aggrieved against the orders passed by the learned Single Judge in Application No. 2485 of 1998 in C.S. No. 140 of 1986 dated 30.6.2000, the
appellants/plaintiffs/applicants have preferred the present O.S.A.
The learned Counsel for the appellants submits that the learned Single Judge s failed to appreciate the peculiar facts and circumstances leading
to the nonappearance of the Counsel for the appellants/plaintiffs/applicants and that their non-appearance was due to circumstances beyond
control of the appellants and resultantly, no default can be attributed to the appellants/plaintiffs/applicants and that the appellants entrusted the
matter to a competent Counsel and that the change of Counsel was necessitated due to the circumstance beyond the control of the appellants and
this was not noticed by the learned Single Judge and the appellants because of the advice that change of Counsel needed a NOC from previous
Counsel and the appellants/plaintiffs/applicants were unaware of the procedural technicalities and formalities and these facts were not taken into
consideration by the learned Single Judge and on coming to know on 28.6.1998 that the suit was dismissed, the appellants/plaintiffs/applicants
took steps to file the application for setting aside the ex parte order which was not noticed by the learned Single Judge and, therefore, prays for
allowing the appeal.
On going through the orders passed by the learned Single Judge in Application No. 2485 of 1998 in C.S. No. 140 of 1986 dated 30.6.2000;
we find that the learned Single Judge has observed that the suit was pending since 1986 and even after 11 years steps were not taken by the
appellants/plaintiffs/applicants in regard to D. 1 to D. 4 and therefore, there was callousness and negligence on the part of the appellants/plaintiffs in
prosecuting the proceedings.
The main reason weighed with the learned Single Judge in dismissing the Application No. 2485 of 1998 in C.S. No. 140 of 1986 on 30.6.2000
is that ""the said application was filed with a delay of nearly 8 years without an application to condone the delay and that the question of knowledge
was immaterial because the plaintiffs were already represented by a Counsel and the case was pending for nearly 11 years and that the
appellants/plaintiffs/applicants failed to establish any valid and sufficient cause to restore the suit and in the absence of any application to condone
the delay, the present application is not maintainable under law"".
The learned Counsel for the appellants/plaintiffs/applicants contends that if the mistake is not attributed to a litigant, the same can be condoned
and in support of his contention placed reliance on U.P. State Road Transport Corporation Vs. Kedar Singh and others, .
He also placed reliance on N. Balakrishnan Vs. M. Krishnamurthy, wherein it is observed by Hon''ble Supreme Court that ""condonation of
delay is matter of discretion of Court and the length of delay is immaterial so long as delay is properly explained and that the rule of limitation is not
meant to destroy the rights of parties and that the explanation for delay should receive utmost consideration if such explanation does not smack of
mala fides or is not part of dilatory tactics and that there is no presumption the delay in approaching the Court is always deliberated"".
The learned Counsel for the appellants cited Rafiq and Anr. v. Munshilal and Anr. (supra), whereunder it is held that ""it is not proper that an
innocent litigant, after doing everything in his power to effectively participate in his proceedings by entrusting his case to the Advocate, should be
made to suffer for the inaction, deliberate omission or misdemeanour of his agent and for whatever reason the Advocate might have absented
himself from the Court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate"".
In the decision V. Bhagat Vs. Usha Bhagat, , relied on by the appellants/plaintiffs/applicants before the learned Single Judge, it is held as
follows:
(A) Civil P.C. (5 of 1908), Order 9 Rule 3; Order 6 Rule 1 and Order 4 Rule 2 - Delhi High Court Rules and Orders, Vol. 1 Chap. 1 (J) - Plaint
presented - Preliminary date for examination of plaint fixed - Plaintiff expected to appear and receive notice of date fixed for hearing - Such date is
not for hearing - Dismissal of suit for non-appearance of plaintiff is illegal.
A perusal of the affidavit of Sajjankumar Gupta one of the partners of appellants/plaintiffs/applicants firm in Application No. 2485 of 1998
indicates that his two Counsel did not appear before the Court on 10.11.1997 and that because of their non-appearance, the Court dismissed the
suit for not taking steps against D.ltoD.4.
It is the case of the appellants/plaintiffs/applicants that they came to know of the dismissal of the suit only on 28.6.1998 and within 30 days
from the date of knowledge of the said dismissal of the suit on 10.11.1997, the present application for restoration of suit was filed and, therefore,
there was no callousness or inaction or negligence on the part of the appellants/plaintiffs/applicants.
It is not in dispute that some of the defendants have filed their written statement.
We have heard Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellants, Mr. V. Bhiman, learned Counsel appearing for the
4th respondent and Mr. Sudarsana Sundar, learned Counsel appearing for the 6th respondent.
We are of the view that a meritorious matter should not be thrown out at the threshold and cause of justice being defeated. Equal Iy the Courts
of Law are not supposed to adopt a pedantic approach and a pragmatic approach has to be made to deliver substantial justice overriding technical
considerations as per as the instant case on hand. It is to be noted that judiciary is respected since it is capable of removing injustice on technical
grounds and is expected to do so.
In the backdrop of detailed discussions mentioned supra, we arc satisfied with the reasons ascribed by the appellants/plaintiffs/applicants as
sufficient cause for restoration of the Suit in C.S. No. 140 of 1986 to file and, therefore, we arc perforced to interfere with the order of the learned
Single Judge passed in Application No. 2485 of 1998 in C.S. No. 140 of 1986 dated 30.6.2000 and, accordingly, set aside the order of the
learned Single Judge passed in A. No. 2485 of 1998 in C.S. No. 1986 dated 30.6.2000 to prevent aberration of justice and to promote
substantial cause of justice.
With these observations, O.S.A. No. 352 of 2001 shall stand disposed of. Considering the facts and circumstances of the case, the parties are
directed to bear their respective costs. Consequently, connected Miscellaneous Petitions are closed.