1990 (1) TMI 325 - HC - Indian Laws

Summary

Issues Involved:
1. Application for condonation of delay.
2. Recalling the order dismissing the suit for non-prosecution.
3. Jurisdiction of the Court to entertain the application.
4. Interpretation of the Division Bench judgment.
5. Sufficient cause for condonation of delay under Section 5 of the Limitation Act.

Issue-wise Detailed Analysis:

1. Application for Condonation of Delay:
The appeal is directed against the trial Court's judgment dismissing the application for condonation of delay and recalling the order dated 15th June 1987, which dismissed the suit for non-prosecution. The plaintiff argued that they had been diligent in taking steps for the suit's early hearing, including writing letters to the Registrar, High Court, Original Side, Calcutta. The learned trial Judge dismissed the application, citing it was barred by limitation and the Court had no jurisdiction to entertain it.

2. Recalling the Order Dismissing the Suit for Non-Prosecution:
The plaintiff's suit was dismissed for default on 15th June 1987. The plaintiff's Advocate-on-Record only learned about the dismissal on 9th May 1988. The plaintiff argued that the cause title and names in the cause lists were incorrectly printed, leading to the suit not being marked or noticed by the Advocate-on-Record. The application for restoration was made on 13th June 1988.

3. Jurisdiction of the Court to Entertain the Application:
The trial Judge interpreted the Division Bench judgment to mean that if the order sought to be recalled had been drawn up, completed, and filed, the Court lost jurisdiction to entertain any application related to such matter. However, the appellate Court clarified that the Division Bench judgment did not hold that the Court loses jurisdiction merely because the order has been drawn up, completed, and filed. The Court retains jurisdiction to entertain an application for setting aside the order if it is made within the period of limitation or if there is a prayer for condonation of delay.

4. Interpretation of the Division Bench Judgment:
The trial Judge's interpretation of the Division Bench judgment was found to be incorrect. The Division Bench held that if an application for restoration is made within the period of limitation, it cannot be dismissed merely because the order has been drawn up, completed, and filed. Similarly, if an application is barred by limitation, the fact that the order has not been drawn up, completed, and filed does not assist the applicant. The appellate Court emphasized that the inherent jurisdiction of the High Court cannot be exercised if the application is barred by limitation, but the Court can entertain an application for condonation of delay.

5. Sufficient Cause for Condonation of Delay under Section 5 of the Limitation Act:
The appellate Court found that the plaintiff had shown sufficient cause for condonation of delay. The plaintiff's Advocate-on-Record had taken steps for the early hearing of the suit, and the incorrect printing of the cause title and names in the cause lists was a sufficient ground for the default. The Supreme Court has held that a litigant cannot be punished for the fault of their lawyer. Therefore, the appellate Court concluded that sufficient cause was shown for condonation of delay under Section 5 of the Limitation Act.

Judgment:
The appellate Court allowed the prayer for condonation of delay and the application for restoration. The delay was condoned, and the order dismissing the suit for default dated 15th June 1987 was recalled. The suit was directed to appear at the top of the appropriate warning list a fortnight hence. There was no order as to costs. The appeal was allowed.