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High Court of Judicature at Calcutta
SUBRATA TALUKDAR, J.
Education Welfare Charitable Trust & Another
Versus
M/s. Art Work Expert Limited
CO. No. 3383 of 2011 (Appellate Side)
Decided on : 30-10-2014
LIMITATION ACT - Restoration of Suit - Procedural Defect - Vakalatnama - Signature of Representative - Curable Defect - Substantive Justice - Delay in Filing - Sufficient Cause - Negligence of Lawyer - Condonation - Limitation Article 122 - Applicability - Society Registered under West Bengal Societies Registration Act, 1961 - Abatement of Suit - Section 19(2) of the Act - Applicability.
Fact of the Case:
Petitioner's suit for eviction was dismissed for default. The application for restoration of the suit was dismissed on the ground of delay in filing and procedural defects in the application and vakalatnama. The petitioner challenged the order of dismissal.
Finding of the Court:
1. The procedural defects in the application and vakalatnama, such as the absence of signatures and designations of the representatives of the plaintiff, are curable defects and should not be allowed to defeat the substantive justice of the case. (Para 17) 2. The delay in filing the restoration application was sufficiently explained by the petitioner on the ground that they were not aware of the dismissal of the suit until they received an information slip on 16th March, 2010, and that they immediately took steps to engage a new counsel and file the restoration application. (Para 18) 3. The negligence of the lawyer in not properly filing the restoration application and vakalatnama cannot be attributed to the petitioner, and the delay caused by such negligence can be condoned. (Para 18) 4. Article 122 of the Limitation Act, which prescribes a limitation period of 30 days for filing a restoration application, is not applicable to the present case as the petitioner is a society registered under the West Bengal Societies Registration Act, 1961, and Section 19(2) of the Act provides that no suit or proceeding shall abate for reason of any vacancy or change in the holding of the office of the President, Secretary or any office bearer of the said society. (Para 21)
Issues: 1. Whether the procedural defects in the restoration application and vakalatnama are curable defects? 2. Whether the delay in filing the restoration application was sufficiently explained by the petitioner? 3. Whether the negligence of the lawyer in not properly filing the restoration application and vakalatnama can be attributed to the petitioner? 4. Whether Article 122 of the Limitation Act is applicable to the present case?
Ratio Decidendi: 1. Procedural defects in a restoration application and vakalatnama, such as the absence of signatures and designations of the representatives of the plaintiff, are curable defects and should not be allowed to defeat the substantive justice of the case. (Para 17) 2. Delay in filing a restoration application can be condoned if it is sufficiently explained by the petitioner and is not attributable to the petitioner's negligence. (Para 18) 3. The negligence of the lawyer in not properly filing the restoration application and vakalatnama cannot be attributed to the petitioner. (Para 18) 4. Article 122 of the Limitation Act, which prescribes a limitation period of 30 days for filing a restoration application, is not applicable to a society registered under the West Bengal Societies Registration Act, 1961, as Section 19(2) of the Act provides that no suit or proceeding shall abate for reason of any vacancy or change in the holding of the office of the President, Secretary or any office bearer of the said society. (Para 21)
Final Decision: The order of the trial court dismissing the restoration application is set aside. The petitioner is granted liberty to rectify the defects in the restoration application, vakalatnama, and application under Section 5 of the Limitation Act within 4 weeks from the date of the order. Upon rectification, the suit shall stand restored. The petitioner is directed to pay costs of Rs. 10,000 to the defendant within 10 days from the date of the order. The trial court is directed to conclude the hearing of the suit and its pending applications within one year from the date of the order.
Subrata Talukdar, J.
In this civil revisional application challenge is thrown to the order impugned no.372 dated 26th August, 2011 passed by the Ld. 6th Civil Court (Senior Division) at Alipore in Misc. Case no.471 of 2010.
By the said impugned order the Ld. 6th Civil Court was pleased to decide an application filed by the petitioner under Section 5 of the Limitation Act, 1963 along with an application under Order 9 Rule 4 Code of Civil Procedure (CPC) praying for restoration of the suit which was dismissed for default. The Ld. Trial Court was pleased to inter alia, come to the finding that from the record it appears that from the report of the death of Abhijit Ghosh who signed the plaint on behalf of the plaintiff no.1-Company on 20th June, 2008 no substitution was carried out on behalf of the plaintiff no.1-Company in the suit. Since 22ndAugust, 2008 the plaintiff was found absent and on 26th October, 2009, i.e. after the lapse of more than one year the suit was dismissed for default.
The Ld. 6th Civil Court was further pleased to observe that the application under Order 9 Rule 4 CPC has been only signed by the representative of the plaintiff no.1-one Dilip Ghosh and Bharati Ghosh. Neither Dilip Ghosh nor Bharati Ghosh were substituted for the plaintiff no.1 in the original suit. However, from the facts stated in the petition under Order 9 Rule 4 CPC it is discernible that both Dilip Ghosh and Abhijit Ghosh were the managing trustees of the plaintiff no.1- Company and after the death of Abhijit Ghosh, Mrs. Bharati Ghosh was appointed as trustee in place of her husband, Abhijit Ghosh. However, the date of appointment of Bharati Ghosh cannot be ascertained from the petition.
Considering the pleadings on the cause made out for restoration of the suit, the Ld. 6th Civil Court was pleased to find that the petitioners have stated that on 16th March, 2010 they were informed that the suit was dismissed for default on 26th October, 2009 and, after the lapse of 1 1/2 months the petition under Order 9 Rule 4 CPC was filed. Thereby the prescribed period of limitation under Article 122 of the Limitation Act of 30 days to file for restoration of the suit was crossed.
The Ld. 6th Civil Court came to the further finding that even if it is assumed that the suit was dismissed for default on the date of knowledge acquired by the petitioners-plaintiffs, i.e. 16th March, 2010 and not 26thOctober, 2009 even then, the application for restoration was not filed within the period of 30 days. The Ld. 6th Civil Court also took notice of the fact that the petition under Order 9 Rule 4 CPC is only signed by the representatives of the plaintiff no.1 and not of the plaintiff no.2. The Vakalatnama filed in Misc. Case no.471/2010 in connection with the application under Order 9 Rule 4 CPC has been signed only on behalf of the plaintiff no.1 and not on behalf of the plaintiff no.2. The Ld. 6th Civil Court therefore came to the conclusion that the delay in filing the restoration application has not been satisfactorily explained by the petitioners-plaintiffs and therefore could not be condoned. The Ld. 6thCivil Court came to the further conclusion that the petition filed in connection with Misc. Case no.471/2010 in the absence of a representation from the plaintiff no.2 is not maintainable in the eyes of law.
Therefore, the Ld. 6th Civil Court was pleased to dismiss the petition under Section 5 of the Limitation Act and hold that the petition under Order 9 Rule 4 CPC is not maintainable.
Assailing by the said Order, Sri S.P.Mukherjee, Ld. Senior Counsel makes the following submissions:-
i) That the petitioner is a Trust and has filed the suit being Title Suit 112 of 1981 seeking eviction against the Opposite Party (for short OP)-defendant. Dr. Abhijit Ghosh is a joint managing trustee of the petitioner no.1 and a partner of the petitioner no.2 and, he is since deceased. The unfortunate death of Dr. Abhijit Ghosh occurred on 1st April, 2008.
ii) O
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