KALYAN KUMAR MANNA vs BHAGABATI DEVI MANNA & ORS.

The appeal has been preferred by a defendant against an order restoring the suit.

According to the appellant, the suit was dismissed for default on April 10, 2008. The application for restoration of the suit or for recalling the order by which the suit was dismissed for default was filed in March, 2010. Within a few days of the receipt of such application, the appellant herein applied by way of GA No.1150 of 2010 for the dismissal of the application for restoration on the ground that there was a delay of nearly two years and no prayer was made for condoning such delay.

According to the appellant, both the application for restoration, GA No.1013 of 2010, and the application for dismissal of the restoration application, GA No.1150 of 2010, were directed to appear together. However, on November 29, 2017, GA No.1013 of 2010 appeared along with GA No.1518 of 2011, which was an application for recording the death of one of the parties.

It is evident from the order impugned that the appellant herein was represented on November 29, 2017 and nothing in the order impugned indicates the objection as to limitation having been urged on such date on behalf of the appellant.

The appellant criticises the order on several counts, including that if advocate-on-record for the plaintiffs had died in 2003, it was incumbent on the plaintiffs to inform the Court and the defendants of any new advocate who may have been engaged. It is also pointed out that though the defendants had filed their written statements, fresh directions have been issued by the order impugned for the written statements to be filed.

In the restoration application, it was asserted that the plaintiffs came to know of the order of dismissal some time in March, 2010, whereupon the application was filed within days. In such circumstances, there was an explanation evident from the application that since the plaintiffs were not aware of the dismissal of the suit earlier than some time in March, 2010, the application for restoration could not be filed earlier.

It is true that the application for restoration did not expressly carry a prayer for condoning the delay. However, once it is evident that an explanation has been furnished indicating the ground for delay, the Court has the authority to condone the delay if the grounds are found to be sufficient. On the basis of the material available to the Court, the delay in applying for restoration in this case ought to have been condoned and it appears to be a mistake in the order impugned that the delay has not been expressly condoned.

The order impugned does not call for any interference other than the condonation of the delay being read therein on the basis of the averments in the application for restoration. The fact that the appellant was represented before the Court when the suit was restored implies that it was open to the appellant to urge all the grounds that the appellant had taken in GA No.1150 of 2013, which had mistakenly not appeared in the list on the relevant date.

There is no merit in the present appeal and APO No.4 of 2018 together with GA No.15 of 2018 are dismissed.

There will be no order as to costs.