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2023 Supreme(Cal) 1588

IN THE HIGH COURT AT CALCUTTA
SHAMPA SARKAR, J.
Atlanta Global Advisors Private Limited – Petitioner
Versus
Sanjib Kumar Jain & Ors. – Respondents
C.O. 3819 of 2022
Decided On : 12-10-2023

Advocates Appeared:
For the Petitioner: Mr. Goutam Mitra, Ms. Suparna Mukherjee, Mr. Rishad Medooa, Mr. Meghajit Mukherjee.
For the Respondents: Mr. Naresh Balodia, Mr. Pallav Choudhary, Ms. Saheli Sur.

Litigants are not penalized for their Advocate's negligence; restoration of a suit can be granted based on demonstrated sufficient cause for non-appearance.

Headnote:(A) Code of Civil Procedure - Order 9 Rule 9, Order 22 Rule 10, Section 146 - Restoration of Title Suit - Plaintiffs prayed for restoration of the suit dismissed for default due to non-appearance, citing negligent conduct of their Advocate. The court allowed restoration based on sufficient cause shown and recognized the rights of subsequent purchasers. (Paras 1, 3, 5, 28)

(B) Legal Representation - The principle that a litigant is not to be penalized for the negligence of their Advocate was reaffirmed. (Paras 25, 26)

Facts of the case:
The plaintiffs were represented by a constituted attorney because of their absence due to living abroad and being senior citizens. The suit was dismissed in 2015, and after acquiring the property, subsequent purchasers sought to restore the suit after demonstrating sufficient cause for the original plaintiffs' absence.

Findings of Court:
The subsequent purchasers were allowed to pursue the suit, as they had acquired rights to the property and sufficient cause for restoration was established.

Issues: The court addressed whether the absence of the original plaintiffs constituted sufficient reason for non-appearance and whether the subsequent purchasers had the right to continue the suit.

Ratio Decidendi: The court held that negligence of the Advocate did not undermine the claims of the original plaintiffs and affirmed that restoration serves the ends of justice.

Result: Revisional application dismissed.

Judgement Key Points

Certainly. Here are the key points derived from the provided legal document:

  • The court emphasized that litigants are not penalized for the negligence of their Advocates, and a suit can be restored if the plaintiff demonstrates sufficient cause for non-appearance at the scheduled hearing (!) (!) (!) .

  • The restoration of a dismissed suit is permissible when the applicant shows a valid and sufficient cause, especially in cases where the delay was caused by circumstances beyond the control of the litigants, such as the negligent conduct of their Advocate (!) (!) .

  • The court acknowledged that the rights of subsequent purchasers who acquire rights in the property and demonstrate a valid cause for the original plaintiffs' absence can be recognized, allowing them to pursue the suit (!) (!) .

  • The principles of procedural law, including the provisions for substitution of parties and continuation of proceedings upon interest devolution, support the court’s discretion to permit such substitutions and to allow the case to be decided on its merits (!) (!) (!) (!) .

  • The court clarified that a formal application for condonation of delay under the relevant law is not strictly necessary; delay can be condoned based on the reasons provided, even orally, if the court finds sufficient cause (!) (!) .

  • The order allowing restoration was based on the principle that justice and substantive rights take precedence over technical procedural objections, especially when the interests of justice favor restoring the suit (!) .

  • The court held that the delay in filing the restoration application was adequately explained, and the order for restoration was exercised within the court’s discretion, considering the circumstances and the interests of justice (!) (!) .

  • The court reaffirmed that the negligence of an Advocate does not automatically penalize the litigant, and the litigant’s right to pursue the case should not be forfeited solely due to the Advocate’s conduct (!) (!) .

  • The order of restoration was found to be proper and not arbitrary or perverse, and therefore, the revisional application challenging this order was dismissed (!) .

  • The court exercised its discretion to allow the suit’s restoration to avoid multiplicity of proceedings and to ensure that substantive justice is served without unnecessary delay, recognizing the rights of parties who have acquired interests in the property (!) .

  • The legal framework permits the continuation of proceedings by or against persons claiming under a party, facilitating the exercise of rights upon interest devolution, which was appropriately applied in this case (!) (!) .

  • The procedural provisions and the principles of liberal construction support the court’s decision to permit substitution and continuation of the suit by the subsequent purchasers, ensuring the case is decided on its merits (!) (!) .

  • Overall, the court’s reasoning underscores that justice is best served by allowing suits to be restored and continued when sufficient cause is shown, and procedural technicalities should not hinder substantive rights (!) .

Please let me know if you need further analysis or specific legal advice based on this document.


Table of Content
1. application for restoration of dismissed suit. (Para 1 , 2)
2. failure of original plaintiffs to appear and communicate. (Para 3)
3. defendant contests plaintiffs' claims and restoration application. (Para 4 , 6 , 7)
4. court's recognition of substituted parties' rights. (Para 5 , 10)
5. discussion on cause for delay and procedural adherence. (Para 8 , 9 , 14)
6. details on the substitution of subsequent purchasers and impact on the case. (Para 11)
7. court's discretion to allow substitution in light of interest devolution. (Para 18 , 19)
8. understanding application of delay condonation principles. (Para 22 , 24)
9. negligence of counsel does not penalize litigants. (Para 25 , 26 , 27)
10. court's reasoning regarding the sufficiency of the restoration request. (Para 28)
11. decision not to interfere with the restoration order. (Para 29)
12. dismissal of revisional application. (Para 30 , 31 , 32)

JUDGMENT :

(Shampa Sarkar, J.)

1. The revisional application arose out of an order dated September 15, 2022 passed in Misc. Case No.14 of 2016. The Misc. Case was an application under Order 9 Rule 9 of the Code of Civil Procedure for restoration of Title Suit No.15509 of 2013.

2. The order impugned has been passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore. By order dated August 14, 2015, the suit was dismissed for default on the ground of non-appearance of the plaintiffs. The Misc. Case was filed with a prayer for recall of the said order of dismissal and for the restoration of the suit to its original file and number. The ground for restoration was negligent conduct of the learned Advocate. The original plaintiffs filed the application for restoration.

3. Dr. Arundhati Mukherjee and Aditi Basu, as plaintiffs filed the suit against the petitioner. The suit was for recovery of khas possession and mesne profit. The plaintiffs did not appear in the suit. They failed to reply to the show cause issued by the court, explaining the reason for their absence. The suit was dismissed for default. On August 11, 2016, the original plaintiffs filed the Misc. Case No. 14 of 2016. The defendants filed their written objection. In the application for restoration, plaintiffs contended that the plaintiff No.1 was an NRI and lived in the United Kingdom and the plaintiff No.2 resided at Dehradun. It was difficult for them to conduct the suit. They were also senior citizens. Accordingly, they had entrusted their learned Advocate to conduct the case and the learned Advocate interacted with them from time to time intimating them about the status of the case. Suddenly, they stopped receiving information. They tried to contact the learned Advocate and consequently one Mr. Chhabindra Kumar Sahu was appointed as constituted attorney sometime in March 2016, to represent the plaintiffs before the learned court. The constituted attorney contacted the learned Advocate for information with regard to the status of the suit, but did not get any reply. In the second week of July 2016, the constituted attorney met the erstwhile Advocate and found that no steps had been taken in the matter. Instruction was given to the learned Advocate to make an enquiry with regard to the status of the suit. Thereafter, another learned Advocate was engaged by the constituted attorney. The learned Advocate took steps to obtain information about the suit on August 4, 2016 by searching the records. An information slip was supplied to the subsequent learned Advocate on August 9, 2016. Upon perusal of the information slip it was found that the suit had been dismissed on August 14, 2016. The plaintiffs were keen to proceed with the said suit. It was prayed that the said suit should be restored to its original file and number. It was pleaded that there was no intentional delay in filing the application for restoration with the specific pleading and prayer that the delay be condoned. That the application for restoration was filed immediately upon coming to know of t

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