1. Appeal dismissed in default — Restoration application dismissed as barred by limitation under Article 122 of Limitation Act. (Para 2 )
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2000 Supreme(SC) 724
SUPREME COURT OF INDIA
D.P.Wadhwa : S.Saghir Ahmad
Hiren Singha Roy
Versus
Howrah Improvement Trust
Case No. : 2638 of 2000
Date of Decision : 4/6/00
Important Points
The Court held that severe illness of a counsel is a valid ground for condoning delay in filing an application to restore an appeal dismissed in default, and such applications should not be dismissed summarily on the grounds of limitation.
Subject
Civil Law - Limitation and Procedure
Act Referred
Headnote
(A) Limitation Act - Article 122 - Application for restoration of appeal dismissed in default - Condonation of delay - Severe illness of counsel - High Court dismissed application for restoration on grounds of limitation, holding that the date of knowledge of the dismissal was immaterial - Where counsel suffered cardiac problems and was advised bed rest during the time the matter was called, and this fact was not disputed - High Court should have condoned the delay and not dismissed the application summarily. (Para 4)
Facts of the case:
A writ appeal was dismissed in default as no one appeared for the appellant. An application for restoration was filed after the 30-day period prescribed under Article 122 of the Limitation Act. The appellant pleaded that the sole advocate had suffered a severe heart attack and was confined to bed during the relevant period, and the appellant only became aware of the dismissal upon inquiry. The High Court dismissed the restoration application on the grounds of limitation, ruling that the date of knowledge regarding the dismissal order was immaterial.
Findings of Court:
The High Court erred in dismissing the application summarily. Given the undisputed fact of the counsel's illness, the delay in filing the restoration application should have been condoned.
Issues: Whether the severe illness of the advocate constitutes sufficient cause for condoning the delay in filing a restoration application for an appeal dismissed in default.
Ratio Decidendi: The court held that when the failure to appear is due to the genuine medical emergency of the counsel, and such facts are not disputed, the High Court should condone the delay in filing a restoration application rather than dismissing it summarily on technical grounds of limitation.
Result: Appeal allowed, impugned judgment set aside, delay condoned and appeal restored.
Facts of the case:
A writ appeal was dismissed in default as no one appeared for the appellant. An application for restoration was filed after the 30-day period prescribed under Article 122 of the Limitation Act. The appellant pleaded that the sole advocate had suffered a severe heart attack and was confined to bed during the relevant period, and the appellant only became aware of the dismissal upon inquiry. The High Court dismissed the restoration application on the grounds of limitation, ruling that the date of knowledge regarding the dismissal order was immaterial.
Findings of Court:
The High Court erred in dismissing the application summarily. Given the undisputed fact of the counsel's illness, the delay in filing the restoration application should have been condoned.
Issues: Whether the severe illness of the advocate constitutes sufficient cause for condoning the delay in filing a restoration application for an appeal dismissed in default.
Ratio Decidendi: The court held that when the failure to appear is due to the genuine medical emergency of the counsel, and such facts are not disputed, the High Court should condone the delay in filing a restoration application rather than dismissing it summarily on technical grounds of limitation.
Result: Appeal allowed, impugned judgment set aside, delay condoned and appeal restored.
Legal Category Hierarchy
Table of Contents
2. Appellant argued counsel's illness prevented appearance; respondent contended appellant was aware of counsel's illness and was negligent. (Para 2 , 3 )
3. High Court should have condoned delay in filing restoration application given counsel's illness and lack of opposition. (Para 4 )
4. Delay in filing restoration application may be condoned where counsel's illness prevented appearance and facts are undisputed. (Para 4 )
5. Appeal allowed, delay condoned, restoration application restored, and matter remitted to High Court for merits. (Para 4 )
6. Is the date of knowledge of dismissal immaterial for limitation under Article 122 of the Limitation Act?
Yes, the High Court held that the date of knowledge on which the order of dismissal was passed was immaterial for computing limitation under Article 122. (Para 2 )
7. Can delay in filing a restoration application be condoned due to counsel's illness?
Yes, where counsel's serious illness prevented appearance and the facts are undisputed, the delay in filing the restoration application should be condoned. (Para 4 )
(1) LEAVE granted.
(2) WE have heard the learned Counsel for the parties. The writ appeal filed by the appellant before the Division Bench of the High Court was within time but it was dismissed in default on 2/9/1997 as nobody appeared on behalf of the appellant before the High Court on that day. On 23/7/1998 an application for recalling the order dated 2/9/1997 was filed by the appellant but it was dismissed on the ground of limitation invoking the provisions of Article 122 of the Limitation Act which prescribes a period of 30 days for making an application for restoration of an appeal dismissed in default. The High Court has held that the date of knowledge on which the order of dismissal was passed was immaterial. In the application for restoration the appellant had pleaded the material facts which are reproduced hereunder :-
"YOUR petitioner/appellant states that Mr. Ashok Kumar Roy was and is the sole advocate in the matter for the petitioner/ appellant That the said learned advocate suffered a severe heart attack in 1996 and was advised to be hospitalised In fact he was ultimately admitted to Daffodil Nursing Home and was kept in I C U for few weeks That further again on 20th August, 1997 the said learned advocate felt severe chest pain and fell seriously ill He had to undergo medical treatment According to the medical advice he was advised bed rest for one month The said learned advocate had nothing but to follow the said medical advice and was confined to bed for the said period i.e. from 20/8/1997 to 20/9/1997. Your petitioner/appellant has to produce the prescription, if necessary at the hearing. That on 15/6/1998 the petitioner/appellant had been to the said learned aadvocate to enquire about the fate of the aforesaid appeal. He was also requested to take steps for early hearing and requested by the petitioner/appellant the said learned advocate assured the petitioner/appellant that he would take steps to get the matter heard by this Honble Court shortly, he would mention the matter before the Honble Court on Monday next i.e. 26/6/1998. Accordingly, the said learned advocate mentioned the matter before the Honble Mr Justice, Satya Brata Singh, and the Honble Mr Justice, Dibyandu Bhusan Dutta on 22/6/1998 for inclusion in their Lordships list for hearing That despite such mentioning before the said Honble Court on 22/6/1998 the matter was not included in the hearing list of their Lordships, the learned advocate caused an enquiry through a Court Clerk Sri Anup Dutta as to why in spite of mentioning before their Lordships the matter was not appearing in the list Your petitioner/appellant has to produce the prescription, if necessary at the hearing That on 156 98 the petitioner/appellant had been to the said learned advocate to enquire about the fate of the aforesaid appeal He was also requested to take steps for early hearing of the appeal On being enquired and requested by the petitioner/appellant the said learned advocate assured the petitioner/appellant that he would take steps toget the matter heard by this Honble That being directed by the learned advocate, said Sri Anup Dutta searched about the matter and informed him on 14 7 98 that the said appeal being FMA 555 of 1989 was already dismissed for default on 2 9 97 by their Lordship the Honble Mr Justice, R.Dayal and the Honble Mr Justice, Amitava Lala Your petitioner/appellant states that as the learned advocate for the petitioner/ appellant fell ill medically, advised bed rest, acted accordingly and was confined to bed from 22.8.97 to 20.9.97 He was prevented from appearing before the Honble Mr.Justice, R. Dayal and Mr. Justice, Amitava Lala on 2.9.97 when the matter was called on. He was not aware at all about the said order of dismissal before 14/7/1998."
(3) IT appears that no reply to the application for restoration was filed before the High Court and the application was not opposed on the facts pleaded therein. Even in the counter aff
