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High Court Of Calcutta
CHITTATOSH MUKHERJEE, RAMKRISHNA SHARMA
OIL AND NATURAL GAS COMMISSION - Appellant
Versus
TRIDIB NATH SANYAL - Respondent
A. F. O. O. 197 Of 1982
Decided On : 04/30/1982
CONDONATION OF DELAY - RESTORATION OF APPEAL - MISTAKE OF COUNSEL - CIRCUMSTANCES CONSTITUTING SUFFICIENT CAUSE - SECTION 5 OF LIMITATION ACT, 1963 - ORDER 41 RULE 19 OF THE CODE OF CIVIL PROCEDURE, 1908 - RULE 26A OF ORDER 41 OF THE CODE OF CIVIL PROCEDURE, 1908 - ORDER 43, RULE 1 (T) OF THE CODE OF CIVIL PROCEDURE, 1908:
Fact of the Case:
The appellant, Oil and Natural Gas Commission, filed an appeal against the order of the trial court dismissing its title suit. The appeal was dismissed for default as the appellant's counsel failed to appear on the date of hearing. The appellant filed an application for condonation of delay and restoration of the appeal, which was rejected by the lower appellate court.
Finding of the Court:
The court held that the appellant had established sufficient cause for its non-appearance on the date of hearing. The court found that the appellant's counsel had acted bona fide and in good faith, and that he had made genuine efforts to ascertain the date of hearing of the appeal. The court also found that the appellant was not aware of the order of transfer of the appeal from the 7th Court to the 10th Court of the Additional District Judge, Alipore.
Issues: 1. Whether the appellant had established sufficient cause for its non-appearance on the date of hearing? 2. Whether the mistake of the appellant's counsel constituted sufficient cause for condonation of delay? 3. Whether Rule 26A of Order 41 of the Code of Civil Procedure, 1908 was applicable to the instant case? 4. Whether the order complained of was appealable under Order 43, Rule 1 (t) of the Code of Civil Procedure, 1908?
Ratio Decidendi: 1. The court held that the appellant had established sufficient cause for its non-appearance on the date of hearing. The court found that the appellant's counsel had acted bona fide and in good faith, and that he had made genuine efforts to ascertain the date of hearing of the appeal. The court also found that the appellant was not aware of the order of transfer of the appeal from the 7th Court to the 10th Court of the Additional District Judge, Alipore. 2. The court held that the mistake of the appellant's counsel constituted sufficient cause for condonation of delay. The court observed that every negligence or mistake on the part of an advocate may not constitute sufficient cause for restoration or re-admission of an appeal dismissed for default, but the court is generally inclined to condone the mistakes of the counsel made bona fide and in good faith. 3. The court held that Rule 26A of Order 41 of the Code of Civil Procedure, 1908 was not applicable to the instant case. The court found that the case was remitted back and not remanded under the aforesaid Rules. Therefore, Rule 26A of Order 41 was in terms not attracted. 4. The court held that it was not necessary to decide whether or not the order complained of would be appealable under Order 43, Rule 1 (t) of the Code of Civil Procedure, 1908. The court observed that the Court below heard and disposed of on merits the appellant's applications under Order 41, Rule 19 of the Code and also its applications under Section 151 of the Code and under Section 5 of the Limitation Act. The appellant has preferred both an appeal and an alternative application under Section 115 of the Code.
Final Decision: The court allowed the appeal and set aside the order of the lower appellate court dismissing the appeal for default. The court restored the appeal on condition that the appellant deposits a sum of Rs. 3,000 in cash and furnishes security by way of bank guarantee for a sum of Rs. 50,000 within two months from the date of the order.
( 1 ) BEING aggrieved by the order of the learned Additional District Judge, 10th Court. Alipore dated the 18th Nov. 1981 dismissing its application for condonation of delay and for setting aside the order dated 7th July, 1981 by which the said court had dismissed. Title Appeal No. 731 of 1979 for default, the Oil and Natural Gas Commission has preferred this First Miscellaneous Appeal and the Re-visional Application under Section 115 of the Code in the alternative.
( 2 ) THE only point is whether or not the appellant Corporation was prevented by sufficient cause from appearing before the learned Additional District Judge, 10th Court, Alipore on 7th July, 1981 when the aforesaid title appeal preferred by it was called for hearing and dismissed for default. The appellant Corporation made its applications for re-admission of the said appeal on 30th of Oct. 1981, i. e. , more than 30 days from the date on which the said appeal had been dismissed for default, therefore, the appellant Corporation was also bound to establish that it had been prevented by sufficient cause from making the said application within the prescribed period of limitation and that the delay ought to be condoned under Section 5 of the Limitation Act, 1963.
( 3 ) THE present case has a chequered history. On 31st May, 1979 the learned Subordinate Judge, 1st Court, Alipore had decreed Title Suit No. 17 of 1971 brought by the plaintiff-respondent, Tridibnath Sanyal. Being aggrieved thereby, the appellant Corporation had presented the aforesaid Title Appeal No. 731 of 1979. The learned Additional District Judge, 7th Court, Alipore had dismissed the said title appeal on the preliminary ground of maintainability. On 19th Feb. 1981 Anil Kumar Sen and B. C. Chakraborty, JJ. , by their judgment and order had disposed of the appeal and also the revisional application of the appellant Corporation and had set aside the order of dismissal of Title Appeal No. 731 of 1979 and had remanded the case for fresh disposal by the learned District Judge or by any other learned Additional District Judge (except the learned Additional District Judge. 7th Court) to whom the appeal might be transferred by the learned District Judge. An Assistant Registrar of this Court by Memo No. 2416-S dated 7th April, 1981 had forwarded a copy of this Court's order dated 9th Feb. 1981 along with the entire lower court records to the Additional District Judge, 7th Court, Alipore, 24 Parganas for information and necessary action. The learned Additional District Judge, 7th Court, Alipore had endorsed on the reverse of the said Memo, dated 7th April 1981 of the Assistant Registrar, his order No. 282 dated 2nd June, 1981 the receipt of this Court's order in the lower court and had directed that the same be forwarded to the learned District Judge, 24 Parganas for information and for taking necessary action as directed by this Court. The learned District Judge by his Order No. 26 dated 6-6-1981 recorded that the records had been received with the copy of the High Court judgment whereby the appeal had been remanded for rehearing by a Judge other than the Additional District Judge, 7th Court, Alipore. The learned District Judge by the same order transferred the appeal to the 10th Court of the Additional District Judge Alipore for disposal. The learned Additional District Judge, 10th Court, Alipore by his Order No. 47 dated 16th June, 1981 recorded that the records had been received on transfer for disposal. The learned Additional District Judge fixed 7th July, 1981 for preemptory hearing. On 7th July, 1981 the learned Additional District Judge, 10th Court. Alipore passed the following order:--"parties have taken no steps and none found present in Court on repeated calls. It is now 11. 35 A. M. Hence Ordered. That the appeal be and the same is dismissed for default. Memo of appeal is sufficiently stamped. "
( 4 ) THE appellant Corporation in their applications for re-admission of the
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