Tripura High Court
Mr. A. Bhowmik vs Mr. H. Deb on 18 September, 2020
Author: S. Talapatra
Bench: S. Talapatra
Page 1 of 4
HIGH COURT OF TRIPURA
AGARTALA
CRP No.1 of 2020
For Petitioner(s) : Mr. A. Bhowmik, Adv.
For Respondent(s) : Mr. H. Deb, Adv.
HON'BLE MR. JUSTICE S. TALAPATRA Order 18/09/2020 Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. H. Deb, learned counsel appearing for the respondents.
By means of this petition, filed under Article 227 of the Constitution of India, the order dated 14.08.2019 has been challenged.
Mr. Bhowmik, learned counsel has submitted that on the solitary ground that the petition, under Order IX Rule 4 of the CPC, which was barred by limitation was filed without any prayer for condonation inasmuch as the said application under Order IX Rule 4 of the CPC was delayed by 42(forty two) days, has been rejected.
Mr. Bhowmik, learned counsel has submitted that the plaintiff was initially not aware that her suit being Title Suit Page 2 of 4 No.20 of 2018 was transferred to the court of the Civil Judge, Senior Division, Dhalai District, Ambassa from the court of the Civil Judge, Senior Division, Court No.2, Unakoti Judicial District, Kailashahar. But when she came to know that her suit has been transferred to that court for bifurcation of the judicial district and enquired about the case, she came to know that her suit was dismissed for non-prosecution. She had immediately instructed the engaged counsel to file a restoration petition which was accordingly filed but that application was filed without any prayer for condoning the delay as aforestated.
Mr. H. Deb, learned counsel appearing for the respondents has submitted that there is no infirmity in the order when no application for the condonation was filed and the application that was filed under Order IX Rule 4 of the CPC was time barred, the Civil Judge, Dhalai Judicial District Ambassa did not have any other option but to reject the application for restoration.
This court is in total agreement with the submission of Mr. H. Deb, learned counsel. But from the transaction it appears before this court that it is not the fault of the plaintiff, but of the counsel who advised her, has made a mistake by not advising the plaintiff to file an application for condonation of delay. Page 3 of 4
Having regard to the substantive ends of justice, this court would interfere with the order dated 14.08.2019 passed in Civil Misc. (Res) 04 of 2019 not on merit, but to pave the judicial process to reach its logical end and to serve the substantive ends of justice.
Accordingly, the order dated 14.08.2019 is interfered with subject to payment of Rs.5,000/- to the defendant within a week from today. Else, the order dated 14.08.2019, as quashed, shall be treated as resurrected for all purposes. On deposit of the receipt in acknowledgement of payment the said amount of cost to the defendant, the plaintiff will be permitted to file an application for condoning the delay, in filing the petition under Order IX Rule 4 of the CPC for restoration of the suit being Title Suit No.20 of 2018 which was dismissed for non-prosecution on 17.01.2019. After filing of such application for condoning the delay the Civil Judge, Senior Division, Dhalai Judicial District, Ambassa shall consider the causes assigned for such delay and pass the appropriate order having afford the opportunity to the defendants to file the objection. On the outcome of the said condonation proceeding, as contemplated, the course of further proceeding would depend. Page 4 of 4
With this observation, this petition stands allowed to the extent as indicated above. Pending application, if any, stands disposed of.
A copy of this order made available to the counsel for the parties.
JUDGE Moumita