Muneshwari Devi vs Jitan Singh

A.B. Srivastava, J.—The short question arising in this revision is whether an application under order 9, Rule 4 CPC to set aside dismissal of a suit and restore it to its original number, moved beyond the period of one month an application u/s 5 of the Limitation Act is necessary. Since the opposite party did not appear when this revision was called for hearing, it is being disposed of on merits on perusal of record and hearing the revisionist.

Admittedly, on 30-4-1983 the date fixed for issues the suit was dismissed for default of the parties under Rule 3 of Order 9 Code of Civil Procedure. The application for restoration of the suit under Rule 4 of Order 9 was moved on 1-8-1983. The said application was dismissed by the learned Civil Judge, Ballia, by the impugned order on the ground that it was barred by limitation and there was no application for can donation of delay u/s 5 Limitation Act.

The contention in the grounds of revision that Section 5 of Limitation Act is not applicable to proceedings for restoration of a suit under Order 9, Rule 4 Code of Civil Procedure, is untenable. The limitation for restoration of a suit dismissed for default of appearance or for want of prosecution etc. is 30 days from the date of dismissal under Article 122 of the Limitation Act. Such being the position the application moved by the revisionist was beyond time and unless there was sufficient cause for condonation of delay, the same could not be entertained or accepted.

On facts however, the alternative contention of the revisionist is correct that the learned lower court could not have disposed of the application tot restoration, without enquiring into the question whether she was prevented by sufficient cause for appearing when the case was called on the date of hearing and till the date when the restoration application was moved.

Under law an oral prayer for condonation, u/s 5 Limitation Act, of delay is also permissible. (See Indrasani Devi v D.D.C Varanasi 1981 ALJ 637.)

In the instant case, the restoration was sought on twin grounds of the revisionist being ill from 30-4-1982 to 31-7-1983 and there being no intimation of date to her or her counsel. While a Plaintiff could not take the plea of non-intimation of date of issues, once the plea of illness also as ground of default from the date of hearing till the moving of restoration application was taken, It amounted to a plea of explaining the default, within the meaning of Rule 4 of Order 9 Code of Civil Procedure, as well as delay within the meaning of Section 5 Limitation Act. The restoration application thus could not be dismissed as not maintainable rather, deserved to be disposed of on merits. The learned lower court acted illegally in the exercise of its Jurisdiction in so dismissing the restoration application.

The revision is, accordingly, allowed the impugned order is set aside and the learned court below directed to dispose of the restoration application on merits.

No order as to costs.