Westinghouse Saxby Farmer Ltd. vs M/s. B.K. Dhar Private Ltd.

Bhaskar Bhattacharya, J.—This is an application for restoration of a civil revisional application which was dismissed for default on January 15, 2002. Being dissatisfied with Order No. 31 dated June 30. 1992 passed by the learned Assistant District Judge, Durgapur in Title Suit No. 38 of 1990 a tenant/defendant came up with an application u/s 115 of the CPC which was entertained by a Division Bench of this court thereby giving rise to CO. No. 2887 of 1992.

After the lapse of long ten years, when the matter came up for hearing on January 15, 2002 before this court, as none appeared on behalf of the petitioner, the said revisional application was dismissed for default and the interim order staying all further proceedings of the suit was vacated.

On May 14, 2002 the petitioner came up with the instant application for restoration thereby setting forth the following grounds in support of such application.

The learned advocate'' appearing on behalf of the petitioner was seriously ill as a result he could not attend court due to illness on January 15, 2002 and hence the matter was not attended to. On May 4. 2002, a representative of the petitioner came to the chamber of the learned Advocate-on-record for fixing the date of hearing of the application but due to illness, the said learned Advocate-on-record handed over the brief as well as "no objection" certificate to the said representative of the petitioner. On May 8. 2002, the petitioner engaged Miss D. Mukherjee, a learned advocate, to appear in this case and accordingly handed over the brief as well as the "no objection" certificate (name of Miss D. Mukherjee was incorporated in the application by ink in a blank portion). On May 10, 2002, the newly appointed learned advocate instructed her clerk to enquire the present position of the matter and after enquiry the clerk of the learned advocate came to know that the said matter appeared on January 15, 2002 and was dismissed for default. Hence the application.

The aforesaid application has been seriously resisted by the plaintiff/opposite party thereby opposing the prayer of the petitioner.

Initially, the matter came up for hearing on June 21, 2001 when the learned advocate for the petitioner prayed for leave to correct cause title and prayer of the application and also prayed for leave to file supplementary affidavit in support of the application. This court allowed such prayer.

Subsequently, the petitioner filed a supplementary affidavit and in the said supplementary affidavit the petitioner explained the delay in filing the application for restoration. In paragraph 9 of the supplementary affidavit it was stated that the father-in-law of the authorized representative of the petitioner having fallen seriously ill due to heart ailments from January to April, 2002, such representative had to take care of him and to take him to doctor for medical treatment and as such he was prevented from keeping contact with the learned advocate. On May 4, 2002 the said authorized representative came to the office of the learned Advocate-on-record for fixing an early date of hearing of the revisional application as he was very much eager and interested to get the matter finally heard. As the said learned advocate was seriously ill, the brief was handed over to the authorized representative along with, "no objection" certificate. Thereafter, the petitioner engaged Miss D. Mukherjee to appear on behalf of the petitioner and the application was filed as stated earlier.

The aforesaid pleas taken by the petitioner have been seriously disputed by filing affidavit-in-opposition. It has been asserted in the affidavit-in-opposition as well as rejoinder to the supplementary affidavit, that the petitioner, a Government Company, engaged M/s. Orr Dignam and Company, a solicitor firm of repute for the purpose of the aforesaid revisional application but since there is no provision of appearance of petitioner, through a solicitor firm in appellate side matters, the revisional application was affirmed through a learned advocate who was connected with the said solicitor firm in his individual capacity. In fact, the opposite party alleges Orr Dignam and Company was all along looking after the case as will appear from the fact that after the said revisional application was entertained by this court. Orr Dignam and Company communicated such order to the petitioner along with the copy of the revisional application as per order of the Division Bench. Thus, the petitioner cannot take the plea of illness of a particular learned advocate-on-record when Orr Dignam and Company was in fact in charge of the case.

In the affidavit-in-reply, the petitioner did not dispute the fact that Orr Dignam and Company was acting on behalf of the petitioner.

After hearing Mr. Saha, the learned advocate appearing on behalf of the petitioner and Mr. Chaudhuri appearing on behalf of the plaintiff/ opposite party and after going through the materials on record I find that the plea taken by the petitioner in this application for restoration is a concocted one. Since Orr Dignam and Company is all along looking after the case of the petitioner, the petitioner cannot take the plea that the learned advocate-on-record of the petitioner was ill and as such he could not be present at the time the revisional application was dismissed for default. Moreover, according to Article 122 of (he Limitation Act, if a revisional application is dismissed for default, application for restoration must be filed within 30 days from the date of dismissal. In the present case, such application has been filed after the lapse of four months and in the supplementary affidavit although the petitioner wanted to explain the delay by saying that the representative of the petitioner could not contact the learned advocate from January to April, 2002 due to illness of his father-in-law, it is rightly pointed out by Mr. Chaudhuri appearing on behalf of the opposite party that in the subsequent affidavit the said defendant was constrained to admit that during these four months he took leave from his office only for 18 days but otherwise all along he attended his office. Moreover, the petitioner being a company, the illness of father-in-law of one of the employees cannot be a ground when that very employee attended his office during that period except for 18 days. The reason of taking of leave for 18 days however has not been disclosed in the affidavit.

Thus, I find that Orr Dignam and Company cannot evade the responsibility of the matter by taking plea of illness of the learned advocate who actually filed power and it is impossible to believe that the said learned advocate returned the brief for the purpose of engaging another lawyer. From the original Vakalatnama Bled by the learned advocate-on-record, it appears that he received the same through Orr Dignam and Company and thus it is apparent that the petitioner was not his direct client and as such could return the brief only to Orr Dignam and Company. The "no objection" certificate has been given not only by the original learned Advocate-on-record but also by one Rabindra Nath Bhattacharya, Advocate. The petitioner has not explained why Mr. Bhattacharya, Advocate also gave "no objection". The petitioner has not stated in this application that it has severed relationship with Orr Dignam and Company for the purpose of moving this application; on the other hand, in paragraph 9 of the affidavit dated July 5, 2002 the petitioner has admitted that Orr Dignam and Company solely relied upon the learned Advocate-on-record which justifies the allegation of the opposite party that the learned Advocate-on-record was only a lawyer connected with the said solicitor firm. I am also not convinced by the explanation of the petitioner that the stenographer who took the dictation of the restoration application failed to note the name of Miss D. Mukherjee, advocate and as such he left a blank space and Miss Mukherjee''s name was incorporated subsequently in Ink. Such mistake should not occur if the application was really prepared in the office of Miss Mukherjee as claimed. I thus find that no sufficient cause has been made out far restoration of the revisional application which was pending in this court far last 10 years. The application far restoration far thus devoid of any substance and is dismissed.

No costs.

Let Xerox certified copy of this order be supplied to the learned counsel far the parties within one week from date.