Purnendu Roy Chowdhury vs Orient Movietone Corporation Ltd.

Amitava Laia, J.—This is an application for recalling the order of dismissal of the suit dated February 19, 1998 and restore in its own position alongwith the prayer for condonation of delay.

The application was made on July 6, 1998 while the suit was dismissed on February 19, 1998.

An explanation was given in paragraph 11 of the petition wherefrom this Court has come to know that on January 30, 1998 one of the Senior Counsels of this Court appearing for the Plaintiffs undergone a surgery and could not attend the court for the month of February till the middle of March. 1998 while another Senior Counsel could not attend the Court from the first week of February, 1998 till the end of April, 1998 due to his ailments.

It has further explained that the suit was called on February 19, 1998 and it was dismissed for default due to non-appearance of the Plaintiffs'' representative/ Counsels in the matter. The Plaintiffs had the impression that the said suit was adjourned due to illness of his two counsels who could not attend the court for more than a month for their ailments.

The Plaintiffs came to know only on June 30, 1998 that the suit was dismissed for default on February 19, 1998.

The Plaintiff has stated in the petition and also verbally raised a grievance that through the plaint ff. even in the month of May, 1998, had a talk with the Defendant''s'''' Counsel about the suit but it was rot disclosed that the suit was dismissed for default in the month of February, 1998.

It has further contended that the Plaintiffs came to know the incident of February 19, 1998 from their Advocate-on-Record when the Petitioner being the then Plaintiff requested him to issue notice to the Defendant''s Advocate to bring the suit in the list of hearing before the Court.

Initially an application was made before the court describing the date of decree as February 10, 1998 when the Respondent made an objection thereto thereby the Petitioners took back the same from the file and put the same with the appropriate date of dismissal of the suit as on February 19, 1998.

The Petitioner contended that they have become confused by a date given in the notice being Annexure ''A'' to the affidavit-in-reply.

However, such detect was condoned.

The Petitioner also contended that although the defect was condoned but within the gap of time in between the first application the second application the Respondent obtained the decree being drawn up, completed, perfected and filed.

Therefore, alongwith the condonation of delay and restoration of the suit, the Petitioner also made a submission about the power of the court to call the decree even after drawing up, computing and filing the same. Obviously with an apprehension that such point can be agitated by the Respondent in their turn.

In support of their contentions Mr. P.K. Mallick and Mr. Dipak Basu, Learned Senior Counsels of the Court with able assistance of Mr. Dipak Some and Mr. Jayanta Banerjee appearing Counsels with them, have drawn my attention to the scope and ambit of the legal provisions under Order 9 and various rules thereunder of the Code of Civil Procedure.

Firstly they have drawn my attention to Order 9 Rule 8 of the Code of Civil Procedure. First part of which says ''where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed....

On the other hand, Order 9 Rule 9 of the CPC says ''(1) 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 satisfies 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....

According to the Petitioners they will be debared from instituting a fresh suit if not the order of dismissal of the suit is not recalled or set aside.

Therefore, even leaving aside the question of power of the Court about recalling of decree after drawing up, completion, perfection and filing of it, the court has also to look into the equitable grourd as above.

According to me the case of setting aside the order of dismissal of the suit stands really on one ground i.e. sufficient cause. Applicability of ''sufficient cause'' is in respect of condoning the delay. Applicability of ''sufficient cause'' is in respect of non-appearance of the defaulting party on the relevant date and time when the suit was called on and dismissed. Applicability of ''sufficient cause'' in respect of totality of the circumstances, but such totality of the circumstances is dependable upon the explanation as to the ''sufficient cause'' in causing delay in making an application and non-appearance on the date and time when the suit v/as called on for hearing and dismissed. Therefore, although the third parameter is a more flexible parameter for application of discretion by a Court but unless and until Court is becoming satisfied with regard to first and second parameters within the four corners of law, the application of third parameter will be de hors the law and the Court will commit an apparent mistake in applying such discretion.

For the purpose of restoring of suit, 30 days period from the date of dismissal of the suit is specified under Article 122 of the Limitation Act, 1963. There is no scope or ambit of taking the ground that the period of limitation commence from the date of knowledge.

A prayer is made for condoning the delay of about 135 days. Therefore, to come under the four corners of Section 5 of the Limitation Act, 1963 one has to make the grounds for satisfaction of the Court as to the sufficient cause of delay.

The only explanation is that the Plaintiffs had come to know about the dismissal of the suit from the Advocate-on-Record of the Petitioner only on June 30, 1998 when the Plaintiffs requested the Advocate-on-Record to issue notice to the Defendant''s Advocate-on-Record for bringing the suit in the list of hearing before this Court. I failed to understand the purport thereof. If the suit is dismissed where is the scope of placing of the suit for hearing in the list.

Therefore, there was an apparent communication gap in between the Plaintiffs and the Advocate-on-Record and no explanation has been put forward to that extent. Even the Plaintiffs have not enquired from the Advocate-on-Record in earlier occasion or no such explanation is given about the conduct of the Advocate-on-Record and his failure to perform the duty in all respect in this context.

It is to be remembered that one of the Plaintiffs, Plaintiff No. 1 therein and deponent to the affidavit in support of this petition to this Court for recalling or setting aside the order of dislissal of the suit is a well-known Barristar of this Court, a knowledgable person and conversant with the Court practice and procedure unlike lay clients but unfortunately till such time as and when the suit appeared, called and dismissed he was not seen in the Court although the dispute is in the nature of ''suit'' where the Plaintiffs'' presence at the time of call is much more required specially for witness action and other incidental instructions regarding final hearing of the suit. Parties in the suit can not proceed on the basis of any presumption. Sometimes such presumption may become fatal as happened in this case.

Leaving aside the explanation as to the total I st of dates has specified in paragraph 3 of the affidavit-in-opposition if this Court go by the part of the list of dates where an explanation has been given as to how many dates the matter was appearing in the list of this bench alone it will be understood that even surrounding circumstances for recalling and setting aside the order of dismissal of the suit is not acceptable at all. Relevant part of the list of dates as apparent from the affidavit-in-opposition is given below:

From 1st December, 1997 till 27th January, 1998:

The suit was appearing before His Lordship the Hon''ble Mr. Justice Amitava Lala.

27th January, 1998:

The suit was mentioned on behalf of the Plaintiff when the same was adjourned till 16.2.98.

16th February, 1998:

The suit was called and passed over in the first call.

17th February, 1998:

The suit was called and passed over in the first call.

18th February, 1998:

The suit was called and passed over in the first call.

19th February, 1998:

The suit was passed over in the first call and second call and was dismissed with costs vacating all interim Orders on third call as nobody on behalf of the Plaintiff appeared on such calls.

That is also positive for the purpose of coming to conclusion as to the ''sufficient cause'' in merit that an explanation should be given with regard to the conduct of the Advocate-on-Record and the litigants at the relevant date and time when the suit was dismissed. For an example, if it appears that regularly the Plaintiffs are attending the court and waiting for the call and their Advocate-on-Record is representing the call or calls, a Court can understand the genuinity of the grievance that the litigants are sincere and their Advocate-on-Record is also sincere to their efforts but some-how they have missed their bus at the relevant date and time which is n ally the meaning and purport of the relevant order and rule of the CPC but if a litigant and his Advocate-on-Record, being well conversant with practice and procedure do not choose to attend the Court then obviously the Court will not be impressed on the explanations. This is depending upon the observation of each case by the concerned Court. It is to be remembered that the Court even without going through the plaint/petition or written statements/affidavit can observe the entire happenings in the Court sitting in his chair which gives a balance in coming to conclusion in the fact situation. If the balance strikes against the Petitioners, the Court will have no other alternative express ''sorry'' to the defeated litigants.

It is also to be remembered that Court is bound by law and cannot override on account of mercy always specially on such a Court where dismissal on account of default is sparingly utilised and that too even in the third call.

Mr. Mallick and Mr. Basu time and again cited various decisions and interpreted accordingly. One of such judgment is Manibala Dassi Vs. Tamizuddin Saha and Another, and upon relying on paragraphs 7 and 8 therein contended that a party who engaged a competent lawyer cannot thereafter be held to be in default for the laches or negligence of that lawyer. After the rejection of the lawyer''s petition for adjournment, it could not be said that the Petitioner had appeared in the suit and accordingly the petition under Order 9 Rule 9 was not maintainable. The Court thought that it is ''sufficient cause'' for non-appearance under Order 9 Rule 9 of the Code of Civil Procedure. By citing another judgment Industrial Minerals and Mill Stores Traders Vs. K.M. Chemicals and Another, they contended that when Counsel for Plaintiff because of its ailment could not be present in Court or could not inform his client about hearing of suit even though if the application is made after long lapse of time since dismissal, grounds were sufficient for restoration of the suit. They have also relied upon Sarpanch, Lonand Grampanchayat Vs. Ramgiri Gosavi and Another, on its head note and paragraphs 3 and 4 and contended that the words ''sufficient cause'' should receive a liberal construction so as to advance subtantial justice when neither negligence nor want of bonafide is imputable to the Applicant. They have also relied upon Collector, Land Acquisition Anantnag and Anr. v. Mst. Katiji and Ors. 1987 (28) E.L.T. 185(S.C.) to establish that there should be a liberal approach for condonation of delay on the light of such judgment as prescribed hereunder:

i) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very there should and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

iii) ''Every day''s delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay ? the doctrine must be applied in a rational common sense pragmatic matter.

iv) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non-deliverate delay.

v) There is no presumption that delay is occasioned deliverately or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by reasoning to delay. In fact he runs a serious risk.

vi) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.''

I have carefully considered the account of ''sufficient cause'' as to the question of limitation and merit simultaneously as a whole for the purpose of better prospective.

To understand the situation let me go through factual and legal aspect to above noted cases and describe hereunder. In the first case factual distinguish-ment is so apparent that the same cannot be fit as a proper citation in the present case. In that case a lawyer was not ready for hearing of the case and seeking of adjournment was refused but the litigant was ready. Therefore, the question of consideration of that Court was that litigant was ready. Can not be similar principle applicable herein where the litigant being a member of the Bar was not attentive in respect to his suit. It appears that he is much more attentive to get in attending the Court in restoration of the suit than of hearing. Had it been the position before dismissal, the suit would not have been dismissed. The member of:he Bar being litigant,-taken the matter very lightly or casually. Even he has forgotton to give any explanation with regard to other Plaintiff.

Next citation as made by the Petitioners relying upon a Division Bench judgment of this Court but then again this Court cannot accept such ratio or proposition as best being applicable in the instant case. The head note of the case is not tallying upon the material part of the judgment. Material part of the judgment speaks about non-appearance of the Advocate-on-Record on account of aliments and making an application in connection thereto belatedly. In the instant case, there is no explanation as to the non-availability of the Advocate-on-Record and explanation, if any, is only resting upon the two Senior Counsels of the Court who normally cannot appear without assistant of the Junior Counsels. But even such explanation cannot get support of the citing judgment since there is no whisper about the very existence of the Advocate-on-Record who actually responsible for the conduct before the Court by his official representation.

So far the third judgment is concerned, although this is in respect of the applicability of special act but on the principle of liberal construction so as to advance substantial justice will only be applicable when neither negligence nor inaction nor want of bonafide is imputable. Therefore, firstly Court has to ascertain as to whether there was any negligence, inaction and want of bonafide imputable or not. I am sorry to say that I am not free to such extent in holding in his favour.

So far the fourth citation is concerned, the same is applicable in respect of condonation of delay alone. But I am of the view that I shall have no misunderstanding if I say that I have gone on the questions of ''sufficient cause'' on account of condonation of delay and in merit simultaneously for the ends of justice. Here ''substantial justice'' is not necessarily mean revival of the suit and it is disposal but ''substantial justice'' as to whether at the threshold the application will be dismissed on account of limitation or it will be heard alongwith the merit of the application. There is no reason to believe that as because question of substantial justice has been observed by the Supreme Court, therefore, this will lead not only the question of limitation and merit not only in respect of the application but also hearing of the suit. I am afraid this is not the ratio of the judgment.

Leaving aside the basis of coming to conclusion if I go on the basis of the principles alone I shall find that those principles are not at all a good principles being over laying different latest principles by the Supreme Court. Court has no other alternative but to go by the latest decision and such decision has formally cited by the Respondent.

Mr. Ajit Kumar Panja, Learned Senior Counsel appearing with Mr. Haradhan Banerjee and Mr. Samir Kumar Roy Chowdhury, Learned Advocates have drawn my attention at first to a judgment P.K. Ramachandran Vs. State of Kerala and Another, to meet the argument of the Petitioners leaving behind the factual submissions. It appears from the judgment that the recent view of the Supreme Court is that in case of condonation of delay law of limitation has to be applied with all its rigour prescribed by statute. Courts have no power to extend period of limitation on equitable grounds. It is apparent that State was in fault in delaying in making an application. It was observed therein that law of limitation may harshly affect a particular party but it should be applicable as above and any discretion exercised by High Court on equitable grounds is neither proper nor judicious. It is to be remembered that time to time this question was considered by the Supreme Court of India. At one point of time Courts were very much rigid as to the applicability of ''sufficient cause'' specially in case of condoning the delay. Subsequently rigidness was relaxed with a criticism that the ''every day''s delay'' must be explained does not mean that a pedantic approach should be made why not every hours delay, every seconds delay, the doctrine must be applied in a rational common sense pragmatic manner. Subsequently another concept was developed by making a difference in between ordinary litigant and state litigant and another liberal approach was made in respect of state litigants. But as would be available in the latest formally cited decision being G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, law of limitation has to be applied with all its rigour prescribed by statute and Courts have no power to extend period of limitation on equitable grounds. Even if it may harshly affect a particular party and the application of discretion by the High Court neither proper nor judicious. Therefore, this Court has no other alternative but to go by the later Judgment. In joining the issue therein, in reply, the Petitioners'' Counsel said that the explanation is that the office of the Advocate General was fade up with so many works which cannot be an explanation but it is to be remembered that the judgment itself not very much confined to the factual aspect but on principle. In such circumstances, it is nmore practical to go by such latest principle followed by the Supreme Court of India. Even if I consider the factual aspect of this particular case either for condonation of delay or in merit may not be too bad as in P.K. Ramachandran v. State of Kerala and Ors.(Supra) is bad in merit even if I accept that so far condoning the delay in making an application is concerned, the explanation is satisfactory.

So far the merit part of the application is concerned. Mr. Panja cited Purnima Dutta and Ors. v. Ratan Kanti Soor and Ors. 1998 (2) C.L.J. 424 judgment delivered by this Court. It appears from its paragraph 7 about satisfactory explanation of delay in making an application and on question of recalling and/or setting aside the Court ultimately found that a negligent litigant cannot be entitled to any indulgance or grace. To that score, Mr. Basu, Learned Counsel appearing for the Respondent contended that the case has apparent distinguishing factor factually on the very face of it. Yes, I agree with Mr. Bose that, of course there is a distinguishing feature and that is to say at least a bare explanation about the conduct of the Advocate-on-Record is forthcoming there. But in the present case no explanation is forthcoming. Therefore, this case is factually worse than the fact of the reported judgment.

A controversy aroses with regard to another incidental factual part when the Petitioners contended that even in the month of May, 1998, the Petitioner/ Plaintiff had a talk with Defendant''s Counsel about the suit and it was not disclosed that the suit was dismissed for default in the month of February, 1998. Therefore, the conduct of the Respondent/Defendant is not at all encourageable and such litigant should not be given an indulgence by refusing an order of recalling ana/or setting aside an order of dismissal of suit. In meeting this point Mr. Panja has cited a Division Bench judgment in Nanalal M. Varma and Co. (Gunnies) P. Ltd. Vs. Gordhandas Jerambhai and Others, that in the similar factual circumstances when such information was not available from the Respondent/Defendant that the suit was no longer arrivaed the Diyjsion Bench of this Court held that the Court do not say that the conduct of the Solicitors/Advocates for such party was at all commendable but the fact remains that no duty is cast on them to inform the Petitioner/Plaintiff''s Advocate that the suit was dead. Therefore, I do not find any reason to interfere with such episode any more.

Now coming back to the only remaining question about the power of the Court to recall and/or set aside the order of dismissal after the decree is drawn up, completed, perfected and filed, this Court has to consider the ratio of two decisions being S.C. Sons (P) Ltd. Vs. Sm. Brahma Devi Sharma and Others, as well as The Ganganagar Sugar Mills Ltd. Vs. Upper Ganges Sugar Mills Ltd. and another, alongwith the advancement of arguments of both the parties through their respective counsels.

The important aspect for our discussion is much more attractive. It was considered by the Court that inherent right of the Court to recall on order before it has completed and filed is well-settled and that power still exists. Ordinarily no Court can modify or recall any final order after the said order is drawn up, completed and filed. But it is not an absolute proposition of law. The said proposition is only a general rule but having some exceptions. A mere fact that before the expiry of the period provided in Article 122, the order dismissing the suit for non-prosecution was drawn up, completed and filed does not make any difference if the application is made within the time period by Article 122. The exercise of inherent juridiction of the High Court to recall any order before it is drawn up, completed and filed does not and cannot take away the jurisdiction of the Court to entertain such application if it is made within the time provided by Article 122 of the Limitation Act. To recall an order before it is completed and filed is, by its nature itself, and exercise of a jurisdiction by the Court is a part of its inherent power but that cannot nullify the specific and express provision of the Limitation Act including Article 122 thereof. An application which is otherwise not barred by limitation cannot be so barred merely because the order in respect of which the application has been made, drawn up and completed before the expiry of such time. If it is held otherwise, that would completely nullify the provisions of the Limitation Act. Inherent jurisdiction cannot be involved to nullify express provision of the Act.

Following such judgment another Division Bench judgment was delivered as reported in The Ganganagar Sugar Mills Ltd. v. Upper Ganges Sugar Mills Ltd. and Anr.(Supra) wherein further explanation was made. It was held therein that if the court has got the power to entertain an application for restoration made within the period of limitation irrespective of the question of the order being drawn up, completed and filed, it has certainly got the jurisdiction to entertain such an application even after the period of limitation has expired.

I have carefully considered the rival contentions about this interesting part of the arguments. According to me, we are coming back to the same old question to understand the situation. The question is to be read in the way as described herein. Firstly, Court will understand as to whether there is any ''sufficient cause'' of making the application for condoning the delay and prevention of the defaulting party on appearing on the respective date and time for the purpose of presenting their case is available or not. If such is available then the other parts are entirely in the hands of the Court for passing order by applying discretion. The work ''discretion'' if applicable the same will be applicable in its totality in merit, in procedure, in rules, and in justice. Therefore, there cannot be any piecemeal discretion such as discretion applicable only in respect of the ment but not be applicable in respect of the limitation or even if it is applicable in respect of the merit and limitation but not be applicable in case of Court''s inherent power of recalling such order when it is drawn up, completed, perfected and filed. Therefore, in true sense an appropriate ''discretion'' of the Court is dependable upon the totality of the ''sufficient cause'' and if it is unavailable every other attempts are futile. Applicability of check and balance is defendable upon the circumstances of each case. In the instant case, in addition to earlier aspects, the Petitioner has come with an application for restoration giving a different date of dismissal on the basis of wrong information when such application was returned. As and when subsequent application was made by that time the decree was drawn up, completed, perfected and filed. The conduct of the Respondent/Defendant was creticised but consideration of such conduct will come forward later on''when the Court will be satisfied with the conduct of the Petitioners. The defaulting party cannot stand in the same footing with a successful party before any Court of law. A successful party in whatever manner he obtained an order cannot be blamed by a defaulting party in the circumstances as explained earlier. In the premises, I do not think any reason to interfere very much in respect of this part since the Petitioners themselves failed to cross the road of the ''sufficient cause'' in all respect.

Therefore in summing up the discussion the following points are derived:

a) Even if provision of condonation of delay is available under the Limitation Act but the same cannot be given effect ignoring Article 122, the provision made for the specific period without an appropriate explanation as to the question of ''sufficient cause'';

b) Latest decision of the Supreme Court, be followed by the High Court i.e. the Limitation Act with its rigour, will be applicable even if it affects harshly to other and any discretion on equitable grounds is neither proper nor judicious;

c) The consideration of the Court as to the question of applicability of the limitation and merit are simultaneous in respect of ''sufficient cause'' and the Court is not satisfied on both;

d) Question of invocation jurisdiction of the Court for recalling and/or setting aside the decree or crder even after the drawing up, completion, perfection and filing of the decree may be applicable sparingly but not only subject to limitation also subject to sufficient cause in all respect otherwise there should not be any end -of litigation.

Under these circumstances, I have no other alternative to dismiss this application but considering the situation no cost is imposed in dismissing such application.

Parties will be at liberty to act on a signed copy minute of the operative part of the order.