1993 Supreme(Raj) 502
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Farooq Hasan, J.
Banwarilal & Smt. Gini Devi - Appellant
Versus
Mangilal Estate Pvt. Ltd. Co. - Respondent
S.B. Civil Restoration Application No. 266 of 1992.
Decided On : 29-03-1993
The court held that a party is not responsible for the inaction of their counsel, and that a delay in filing a restoration application may be condoned if it was not deliberate or negligent, and if the party acted promptly upon learning of the dismissal of their appeal.
Headnote:
LIMITATION ACT - SECTION 5 - RESTORATION OF APPEAL - CONDONATION OF DELAY - SUFFICIENT CAUSE - INACTION OF COUNSEL - KNOWLEDGE OF DISMISSAL OF APPEAL - DELAY IN FILING RESTORATION APPLICATION - PRINCIPLES OF LAW.
Fact of the Case:
The appellants' appeal was dismissed in default for non-appearance of their counsel. They filed an application for restoration of the appeal and condonation of delay under Section 5 of the Limitation Act, claiming that their counsel was indisposed and out of station on the date of hearing, and that they were not aware of the dismissal of the appeal until much later.
Finding of the Court:
The court held that the appellants were prevented by sufficient cause from appearing when the appeal was called for hearing, and that they were not responsible for the inaction of their counsel. The court also held that the delay in filing the restoration application was not deliberate or negligent, and that the appellants had acted promptly upon learning of the dismissal of their appeal. Therefore, the court allowed the applications for restoration of the appeal and condonation of delay.
Issues: 1. Whether the appellants were prevented by sufficient cause from appearing when the appeal was called for hearing? 2. Whether the delay in filing the restoration application was deliberate or negligent? 3. Whether the appellants acted promptly upon learning of the dismissal of their appeal?
Ratio Decidendi: 1. The court relied on the principles of law laid down in Rafiq Vs. Munshilal (AIR 1981 SC 1400) and Collector, Land Acquisition Anantnag Vs. Mst. Katiji (AIR 1987 SC p. 1353) to hold that the appellants were not responsible for the inaction of their counsel, and that they were prevented by sufficient cause from appearing when the appeal was called for hearing. 2. The court held that the delay in filing the restoration application was not deliberate or negligent, as the appellants had acted promptly upon learning of the dismissal of their appeal. 3. The court also relied on the decision in Shri Anwari Basavaraj Patil Vs. Shri Siddaramaih (1993 (1) JT p. 328 SC) to hold that the provisions of Section 5 of the Limitation Act apply to civil appeals pending before the High Court.
Final Decision: The court allowed the applications for restoration of the appeal and condonation of delay, and directed that the appeal be restored to its original number and be listed for hearing.
JUDGMENT
1. - This order will dispose of two applications, one, filed under Section 5 of the Limitation Act seeking condonation of the delay in filing restoration application, and the other, filed under O. 41 It 19, Civil Procedure Code seeking restoration of S.B. Civil Second Appeal No. 40/1981 which was dismissed in default on account of the absence of the learned counsel for the appellant.
2. The restoration is sought on the grounds that Dr. M.M. Tewari, advocate for the appellants-applicants was in hospital for his treatment during the period, prior to & after 10.8.88, and Dr. S.K. Tewari, other counsel for the appellants, was out of station for a couple of months, and thereby, both of them could not attend the court on 10.8.1988; and that, the applicants were told by their counsel that disposal of their appeal would take its own course and time because of backlog of pending cases before the Court, therefore, they would be informed as and when their presence would be required court, thereby they need not to appear on each and every date of hearing, an further that, on account of indisposition of Dr. M.M. Tewari and absence of Dr. S.K. Tewari at Jaipur the applicants could not be informed of the date of hearing, thereby the applicants could not make themselves present in court on 10.8.1988. Taking the aid of the aforesaid contention, Dr. M.M. Tewari contended that the absence of the applicants was bonafide, and beyond their control.
3. As to the knowledge of the dismissal of the appeal, to the applicants, it has been urged that when son of the applicants had gone to the court of Munsif & Judicial Magistrate, Jhunjhunu on 2.11.1991 in some other case, then it came to his notice that some exparte order was passed by the Magistrate in an execution case, therefore, he applied for furnishing copy of various orders in execution case the very day and the copies were furnished to him on 13.11.1991 while it came to his notice about an order of dismissal of the second appeal on 10.8.1988 in default. Thereupon, their counsel was contacted and apprised of the aforesaid order of dismissal and immediately thereafter on 15.11.1991, the restoration application has been filed after 3 years & 66 days, alongwith an application under Section 5 of the Limitation Act, duly supported by advocate, Dr. M.M. Tewari's affidavit. Affidavit of Vinod Kumar son of the applicants has also been filed.
4. Notice was issued on the restoration application so also the application for condonation of the delay. The respondent filed reply to the applications. But, in the reply, it has not been denied that Dr. M.M. Tewari or Dr. S.K. Tewari was not advocate on behalf of the applicants. The fact of sickness of Dr. M.M. Tewari has not emphatically been denied. The only assertion made in the reply is that neither any documentary proof that Dr. M.M. Tewari was hospitalised on 10.8.1988, has been submitted nor any averment to this effect has been incorporated in the affidavit sworn by Dr. M.M. Tewari.
5. In this regard, I have perused the averments made in affidavit sworn by Dr. M.M. Tewari. According to its second para, Dr. M.M. Tewari stated on oath that the contents of paras I to 7 of the restoration application are true to his personal knowledge. In para 2 of the restoration application, it has been urged that Dr. M.M. Tewari was in hospital for his treatment during this period prior to 10.8.88 and after 10.8.1988. In view of the affidavit of Dr. M.M. Tewari who has been practising in this Court for last more than fifty years, the fact of his indisposition cannot be held to be false only in the absence of any documentary proof.
6. Main thrust in the reply to the applications is that the restoration application is hopelessly time barred, because the period for filing such application is prescribed as thirty days under the Limitation Act whereas the present application has been filed after 3 year & 66 days and thus it is time barred of the aforesaid period. It has also be
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