Calcutta High Court
The Ganganagar Sugar Mills Ltd. vs Upper Ganges Sugar Mills Ltd. And ... on 12 January, 1990
Equivalent citations: AIR1990CAL438, (1990)1CALLT248(HC), AIR 1990 CALCUTTA 438, (1990) 1 CALLT 248
ORDER Bimal Chandra Basak, J.
1. This appeal is directed against a judgment and order passed by the trial Court dismissing the application for condonation of delay and for recalling the order dated 15th June, 1987 passed by the learned trial Judge dismissing the suit for non-prosecution.
2. The facts of this case are shortly as follows :
On or about 1st February, 1980, the plaintiff instituted this suit against the defendants for leave under Clause 12 of the Letters Patent, decree against the defendants or such of them as may be held liable to the plaintiff for the sum of Rs. 14,37,400.23 paise, declaration that the sum of Rs. 9,33,377.16 paise is payable by the defendants or either of them to the plaintiff and decree directing the defendants to pay the sum of Rs. 9,33,377.16 paise along with interest thereon from 31st January, 1977 at the rate of 18% per annum until payment, interim and further interest, costs and various other reliefs. The writ of summons was duly served on the defendants Nos. 1 and 2. On or about 7th March, 1980, the defendant No. I duly entered appearance. An application was made by the plaintiff for final judgment in March, 1980. There was also an application on or about 7th April, 1980 on behalf of the defendant No. 1 for revocation of leave under Clause 12 of the Letters Patent. By an interim order dated 7th April, 1980, the suit and the proceedings therein was stayed. The application for final judgment and for revocation of leave was disposed of by giving directions for expeditious hearing of the suit. The suit was directed to appear at the top of the prospective list of suits on 2nd September, 1980. Thereafter, the defendant No. 2 also entered appearance. Both the defendants filed written statements. A peremptory order for discovery was made in April, 1981 and inspection was also taken. According to the plaintiff, all appropriate steps were taken in the suit for early hearing. The plaintiff's Advocate on Record wrote a letter in August, 1980 to the Registrar, High Court, Original Side, Calcutta, to place the said suit at the top of the prospective list of suits in terms of the said order. According to the petitioner, the petitioner had been at all times diligent in taking steps in the instant suit and there was no negligence and/or laches on the part of the petitioner. It had also caused its Advocate-on-Record to write a letter to the Registrar, High Court, Original Side, Calcutta, to place the instant suit in the propsec-tive list. It is also the case of the petitioner that it has always been conducting and reminding its Advocate for the final hearing when the petitioner was assured that the petitioner will be informed as and when the suit is placed in the peremptory list of suits for final disposal.
3. A letter was written on 20th/21st April, 1988, by the plaintiff to its Advocate-on-Record about the final hearing of the suit pursuant to which the plaintiff's Advocate-on-Record issued a notice dated 5th May, 1988 and mentioned this suit before the trial Court on 9th May, 1988, for fixing an early date of hearing of the suit. On 9th May, 1988, at the mentioning of the said suit before the trial Court, on behalf of defendant No. I it was pointed out that the said suit was dismissed for default by the trial Court by an orderdated 15thJune, 1987. The explanation given would appear from paragraph 16A of the petition made before the trial Court which is set out hereinbelow :
"Your petitioner has come to learn from its Advocate-on-Record that immediately after having come to learn with regard to the dismissal of the above suit at the mentioning on 9-5-88, your petitioner's Advocate-on-Record caused necessary enquiries when it transpired as follows :
(a) The above suit had appeared in the daily peremptory list before the Hon'ble Mr. Justice Prabir Kumar Majumdar on Friday 12-6-87 and again on Monday 15-6-87.
(b) The suit number as also the cause-title and name of the petitioner's Advocate-on-Record was not printed properly and clearly in the said cause lists dated 12-6-87 and 15-6-87, In fact the suit number, the cause-title as also the name of the petitioner's Advocate-on-Record were not correctly printed.
(c) The name of the Advocate-on-Record for the defendant No. I M/s. Khaitan and Co. was also not printed in the said cause lists dated 12-6-87 and 15-6-87.
(d) The name of the petitioner 'Ganga Nagar Sugar Mills Ltd.' was not correctly printed in both the said two cause lists. The name of the petitioner was printed as "The Ganga Nagar Mills Ltd." The name of the defendant No. 1 "Upper Ganges Sugar Mills Ltd." was also incorrectly printed as "Upper Ganga Sugar Mills Ltd."
Due to the above-mentioned various reasons as also due to inadvertance and/or mistake the Court clerk of the petitioner's Advocate-on-Record could not mark and/or notice the above suit in the said cause lists dated 12-6-87 and 15-6-87.
(e) The above suit having been not marked and/or noticed in the said cause lists dated 12-6-87 and 15-6-87 at the office of the petitioner's Advocate-on-Record as aforesaid, no one on behalf of the petitioner could appear before the Hon'ble Mr. Justice Prabir Kumar Majumdar at the time when the above suit was called on for hearing on 12-6-87 and 15-6-87."
4. This application for restoration was made by way of a Notice of Motion taken out on 13th June, 1988. The learned trial Judge considered the contention raised on behalf of the defendants that this application was not maintainable as the Court had no jurisdiction and also that the application was barred by limitation. The learned Judge pointed out that there was a prayer for condonation of delay. However, the learned Judge dismissed the said application purporting to apply the law laid down by a Division Bench of this Court in the case of S. C. Sons (P.) Ltd. v. Smt. Brahma Devi Sharma, (to which I was a party).
5. We are constrained to observe that the learned Judge's interpretation of the Division Bench judgment was not correct. The learned Judge correctly noted that in the said Division Bench judgment, it was held that the application made before the trial Court for setting aside the dismissal for non-prosecution not being barred by limitation could not be barred merely because it was made after the order was drawn up and completed. The learned Judge further noted correctly that, on the other hand, if such an application was otherwise barred by limitation it was not open to the Court to allow such an application in exercise of Us inherent right merely because the order had not yet been drawn up, completed and filed. The learned Judge noted that the application was made long after the period of limitation had expired. The learned Judge further noted that in the application itself there was a prayer for condonation of delay. In this context, the learned Judge observed as follows :
"It, therefore, appears according to the said Bench decision that the Court cannot exercise inherent jurisdiction, if the Court can exercise such inherent jurisdiction, in a matter like this, if the order sought to be recalled has been drawn up, completed and filed and no application for restoration has been made within the period prescribed by laws of limitation."
We are not clear what the learned Judge meant by the same.
6. The learned Judge observed that the application for restoration has been taken out long after the dismissal of the suit. The learned Judge rightly pointed out that such an application might, however, be entertained condoning the delay under Section 5 of the Limitation Act if there is sufficient reason for condoning the delay. However, the learned Judge observed that such power of condoning the delay under Section 5 of the Limitation Act can only be exercised if the Court has jurisdiction to entertain the application for restoration. The learned Judge thereafter made this observation that this part of law has not yet been disturbed uptill now that if the order sought to be recall has been drawn up, completed and filed, then the Court loses the jurisdiction to entertain any application relating to such matter.
7. In our opinion, though the learned Judge purported to agree with the Division Bench, he has completely misconstrued the said Division Bench judgment. The Division Bench did not hold that merely because the order sought to be recalled has been drawn up. completed and filed, the Court loses its jurisdiction to entertain any application relating to such matter. The correct law laid down by the Division Bench is that (as the learned Judge himself noted initially) in exercise of inherent jurisdiction of the Original Side of this Court, this Court can recall an order before it is drawn up, completed and filed. What has been held and what is the correct law is that if an application for restoration is made within the period of limitation, that application cannot be dismissed merely on the ground that the order has already been drawn up, completed and filed. Similarly if an application for restoration is barred by limitation, then merely because the order has not yet been drawn up, completed and filed, that would not come to the assistance of the applicant. However, in the case before the Division Bench there was no question of any condonation of delay. The Division Bench did not and certainly could not hold that in case where the order was drawn up, completed and filed, even the period of limitation has not expired, the Court will have no jurisdiction to entertain an application for setting aside the order. The Division Bench did not also hold that where an order was drawn up, completed and filed, even if the period of limitation has expired, the Court has no jurisdiction to entertain an application for condonation of delay. Even if the order has been drawn up, completed and filed, the Court still retains its jurisdiction to entertain an application for setting aside the order dismissing the suit for default if this application is made within the period of limitation. The Court does not lose its jurisdiction to entertain such an application if it is made within the period of limitation merely because the order has been drawn up, completed and filed and accordingly the inherent jurisdiction of this High Court cannot be exercised. We do not see how it can be said that the Court loses its jurisdiction to entertain an application for condonation of delay merely because the order has been drawn up, completed and filed. If the Court has got the power to entertain an application for restoration made within the period of limitation irrespective of the question of the order being drawn up, completed and filed, it has certainly got the jurisdiction to entertain such an application even after the period of limitation has expired when the prayer for condonation of delay is also made. Otherwise, the situation would become absurd. Even if an order is drawn up, completed and filed, the application for restoration lies if it is made within the period of limitation. Even if such an application for restoration is not made within the period of limitation, if sufficient cause is shown for condonation of delay, still such application for restoration lies. We do not see how it can be said that merely because the order has been drawn up, completed and filed and accordingly the Court cannot exercise its inherent jurisdiction to re-call the order, the Court loses its jurisdiction to entertain an application for setting aside an ex parte order along with or without an application for condonation of delay. The prayer for condonation of delay relates to the application for setting aside an ex parte order/decree. The period of limitation has been set down in the Limitation Act and under certain circumstances this period of limitation is extended and/or excluded in computation of such period of limitation. An application for condonation of delay is also under the same Act. If upon computation of such period of limitation, the application for restoration is not barred by limitalion, then such application cannot be barred by limitation if delay is condoned in an application under Section 5 of the Limitation Act. The mere fact that the application for restoration is barred by the ordinary period of limitation, would not bar the Court from entertaining this application for condonation of delay for making such application for restoration. As a matter of fact the question of making an application for condonation under Section 5 arises only if it is otherwise barred by limitation. In our opinion, the learned Judge has misunderstood the law laid down by the Division Bench of this Court though he purported to follow the same. Accordingly, in our opinion, the Trial Court's judgment cannot be treated as a correct judgment.
8. Now we will have to see, therefore, as to whether the said application for condonation should have been allowed by the learned trial Judge on merits. In our opinion, the only question to be determined is whether sufficient cause has been shown for condonation of delay. If such sufficient cause has been shown then merely the fact that the ordinary period of limitation has expired would not stand in the way. Here the fact is that the plaintiff has taken all the steps including making an application for a summary judgment. The Court directed expeditious hearing of the suit. Certain steps were taken by the plaintiff. The plaintiffs case is not disputed. He has directed the Advocate on record to take appropriate steps for early hearing. Discovery and inspection have been completed. It appears that when the suit was dismissed for default, the cause title given was wrong. That itselfis a sufficient ground.
9. In that view of the matter, if there has been any defaull, it has been a default not on the part of the liligani but on the part of his Advocate on record. Now the Supreme Court has set at rest that a litigant cannot be punished for the fault of his lawyer. Even if there has been negligence and that negligence is on the part of the Advocate on record of the plaintiff and not the plaintiff as such, the plaintiff cannot be punished.
10. For the aforesaid reasons we are of the opinion that sufficient reason was shown for condonation of delay and we are quite sure that had not the learned trial Judge misinterpreted the Division Bench Judgment of this Court, the learned Judge would have taken the ground as sufficient reason. It is to be pointed out that the learned Judge did not go into the question at all nor the facts stated amounted to sufficient reason even under Section 5 of the Limitation Act. Having regard to the observation of the learned Judge that according to him he had no jurisdiction to entertain this application, we are of the opinion that sufficient cause has been shown for condonation of delay under Section 5 of the Limitation Act.
11. Accordingly, we allow the prayer for condonation of delay. We are also satisfied that sufficient cause has been shown. Accord-ingly, we allow the application for restoration. This appeal is allowed. The application for condonation and restoration is allowed, The delay is condoned. The order dismissing' the suit for default dated 15th June, 1987, is hereby recalled. The suit is directed to appear at the top of the appropriate warning list a fortnight hence. Interim order, if any, is vacated.
12. There will be no order as to costs.
Amarabha Sengupta, J.
13. I agree.
14. Appeal allowed.