Calcutta High Court (Appellete Side)
Ajoy Sharma vs Dwijendra Nath Dhar & Ors on 4 January, 2021
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
04.01.2021
Mithun
List - D/L
Sl. No. 19
Ct. No. 09
S.A/522/2009
with
I.A No: CAN/2/2015 (Old No: CAN/10315/2015),
CAN/3/2015 (Old No: CAN/10316/2015),
CAN/4/2015 (Old No: CAN/11512/2015),
CAN/6/2018(Old No: CAN/1217/2018),
CAN/7/2020(Old No: CAN/1557/2020),
CAN/8/2020(Old No: CAN/1558/2020).
Ajoy Sharma
-Vs.-
Dwijendra Nath Dhar & Ors.
Mr. Siddheswar Chandra, Adv.,
...for the Appellant.
In the Daily List in respect of the instant appeal
as many as six applications are shown to be pending.
However, on examination of record, it appears
that CAN/2/2015 (Old No.CAN 10315/2015) was an
application for stay and the said application has
already been disposed.
CAN/3/2015 (Old No.CAN/10316/2015) is an
application for recording subsequent event, which
shall be dealt with along with the appeal.
CAN/4/2015 (Old No.CAN/11512/2015) is an
application for passing appropriate order striking out
the name of the deceased respondent No.2 and the
said application was also disposed of.
CAN/6/2018 ( Old No.CAN/1217/2018) is an application filed by the respondent praying for leave to withdraw the amount deposited towards occupational charges. The said application is pending 2 for disposal and it will be disposed of as and when prayed for by the applicant.
CAN/7/2020 (Old No.CAN/1557/2020) is an application filed by the appellant/petitioner praying for restoration of the appeal setting aside the order of dismissal of the appeal for default passed on 5 th November, 2019 by a Coordinate Bench. The above mentioned application was filed on 13 th February, 2020.
On the self same date, the appellant/petitioner filed another application being CAN/8/2020 (Old No.CAN/1558/2020) under Section 5 of the Limitation Act praying for condonation of delay.
In course of hearing, it is submitted by the learned Advocate for the petitioner that the appeal was dismissed for default as none appeared on the date of hearing i.e. on 5 th November, 2019 when the matter was called on for hearing. Therefore, the appeal was dismissed for default under the provision of Order IX Rule 3 of the Civil Procedure Code.
It is also submitted by the learned Counsel for the appellant that the application for restoration of the appeal was filed under the provision of Order IX Rule 4 of the Civil Procedure Code and therefore, no notice is required to be served upon the respondents. With regard to delay in filing the appeal, learned Advocate for the appellant submits that as no period of limitation is prescribed for an application to be filed under Order IX Rule 4 of the Civil Procedure Code, it is not required to explain any delay in filing the application for restoration. In support of his contention he refers to a decision of the Karnataka High Court in the case of Syed Mustapha Kamal Pasha and another Vs. Dr. H.A.Ramachandra 3 Gowda and others reported in AIR 1996 Karnataka 91.
I have duly considered the submission made by the learned Advocate for the petitioner and I also hold the same view that no application for condonation of delay is required to be filed by the applicant along with the application under Order IX Rule 4 of the Civil Procedure Code.
On perusal of the application it appears that the petitioner has been able to establish sufficient ground for his non-appearance when the appeal was dismissed for default.
For the reasons stated above, the application being CAN/7/2020 (Old No.CAN/1557/2020) is allowed.
For the above reason, CAN/8/2020 (Old No.CAN/1558/2020) is also disposed of being infructuous.
The instant appeal be and the same is restored to its file. All interim orders in the appeal is revived.
The appellant/petitioner is directed to serve notice for restoration of the instant appeal to the learned Advocate for the respondents and file affidavit-of-service within 3 weeks from the date. The appellant is also at liberty to mention the matter for listing of the instant appeal for final hearing.
(Bibek Chaudhuri, J.)