( 1 ) BY this order, I would be disposing of the applications bearing IA No. 7872/87 and IA. 1494/89 both under Order IX Rule 9 Civil Procedure Code moved by the plaintiff for restoration of the suit dismissed in default and for non-prosecution. IA No. 931/90 is the application under Section 5 of the Limitation Act for condonation of the delay in moving the above applications.

( 2 ) MR. Lalit Kumar Bhargava, the plaintiff now deceased had instituted this suit seeking declaration that the deed of dissolution of partnership dated 9. 4. 1984, between the parties was invalid and the same had been obtained by the defendant fraudulently and by misrepresentation. Further as a consequence thereof a decree of dissolution of the partnership firm and rendition of accounts was sought in the suit. The plaintiff and the defendant were brothers.

( 3 ) THE application IA No. 1494/89 in fact seeks the restoration of an earlier application IA No. 7872/87, which was dismissed in default and for non-prosecution. The applications have been vehemently opposed by the counsel for the defendant as being highly belated, barred by limitations and not maintainable. Counsel urges that these reflect gross negligence and inexcusable conduct in the prosecution of the suit by the plaintiff.

( 4 ) IT would be pertinent to briefly notice the facts leading to the filing of the present applications. As noted, the suit was instituted by Mr. Lalit Kumar Bhargava on 19. 3. 1986. As process fee was not filed and counsel did not appear on two dates the suit was dismissed for non-prosecution on 4. 11. 1986. An application IA. 7131/86 under Order IX Rule 9 Civil Procedure Code was allowed and the suit was restored.

( 5 ) THERE were defaults again on behalf of the plaintiff and his counsel and the suit was again dismissed for non-prosecution on 6. 10. 1987. I. A. 7872/87 under Order IX Rule 9 Civil Procedure Code was then moved by the plaintiff on the ground that the counsel had to go out of India and had requested a junior counsel to attend. Further that the junior counsel was informed that the plaintiff on account of illness would not be able to appear. This application had been signed by the junior counsel and supported by the affidavit of the clerk of the counsel. This application was dismissed in default and for non-prosecution on 14. 9. 1998. In between during the period October 1987 to September 1988, IA. No. 4111/88 under Order XXXIX Rules 1 and 2 and IA No. 4869/88 under Order 40 Rule 1 Civil Procedure Code were also moved by the counsel for the plaintiff Mr. Vijay Gupta. An order of status-quo was also passed in IA No. 4111/88 on 20. 7. 1988. These applications (IAs. 4111/88 and 4869/88) were supported by the affidavits of the plaintiff.

( 6 ) THE plaintiff, it is stated, who was suffering from a prolonged illness died on 22. 9. 1988. His son the present applicant Mr. Ish Kumar Bhargava, who was in U. S. A. returned to India and appears in court for attending the hearing of applications bearing IA Nos. 4111/88 and 4869/88, which were renotified. The applicant engages another advocate and moves an application for substitution as a legal representative on 20. 12. 1988 being IA No. 2/89, of which notice was issued returnable in April, 1989. The applicant claims that he got the file inspected on 23. 1. 1989 and only then learnt about the dismissal of the suit for non-prosecution on 6. 10. 1987 as well as of the application made for restoration on 14. 9. 1988. It is the applicants case, that the concerned advocate never informed the applicant or his late farther about the dismissal of the suit. In these circumstances, the applicant moved the present application IA No. 1494/. 89 for recalling the order of dismissed of IA No. 7872/87 dated 14 9. 1989.

( 7 ) IN the background of the aforesaid factual matrix, learned senior counsel for the plaintiff/applicant urged before me that this was a case of negligence of the counsel, for which the applicant sho