AHMAD MANSURI Vs. NANDU SAO

JUDGEMENT

(1.) THIS civil revision is directed against an order dated 17.09.2003 passed by the Additional District Judge, Link Court. Ramanujganj, Surguja in Miscellaneous Civil Appeal No.5/2002.

(2.) BRIEF facts are that the applicant/plaintiff had filed Civil Suit No. 17-/2001 against the non-applicants/defendants before the Civil Judge, Class-1, Ramanujganj, Surguja. The suit was fixed for recording of evidence on 8.3.2002, on which date the applicant/plaintiff and his witnesses remained absent. An application was filed on behalf of the applicant/plaintiff for adjournment under Order 17 Rule 1 of the Code of Civil Procedure (henceforth 'the Code') on the ground that the original counsel Shri R.A.Tiwari had gone to Ambikapur for attending another case. The learned Civil Judge, Class-1, Ramanujganj rejected the application, proceeded under Order 17 Rule 2 of the Code and dismissed the suit. The applicant/plaintiff preferred an application under Order 9 Rule 9 read with Section 151 of the Code for setting aside the dismissal of suit. By an order dated 6.9.2002, the application was dismissed on the ground that it was barred by limitation as also on the ground that there was no justification for setting aside the order dated 8.3.2002. Against this order dated 6.9.2002, the applicant/plaintiff preferred Miscellaneous Civil Appeal No.5/2002 before the IInd Additional District Judge, Ambikapur, Camp Court, Ramanujganj. The Lower Appellate Court dismissed the appeal by the impugned order dated 17.9.2003 on the ground that no satisfactory explanation was given by the applicant/plaintiff for his non-appearance before the Lower Court on 8.3.2002 as also on the ground of limitation. Hence this revision.

(3.) IT was urged that in the application filed by the applicant/plaintiff under Order 9 Rule 9 of the Code, it was clearly mentioned that the application was within limitation since the counsel for the applicant miscalculated the period of limitation from the date of receipt of the copy of the impugned order dated 8.3.2002 on 15.3.2002 and a revision was filed on 15.4.2002. Thus, under an erroneous assumption that the application under Order 9 Rule 9 of the Code was filed within limitation under Article 122 of the Limitation Act, the counsel for the applicant/plaintiff did not file and application under Section 5 of the Limitation Act for condonation of the delay duly supported with an affidavit. Placing reliance on Suresh Kumar and others vs. Kurban Hussain Taiyab Ali (Firm) and others, 1996 MPLJ 330, it was argued that where the Court was of the opinion that in absence of a formal application, the delay could not be condoned, it was the duty of the Court to give an opportunity to the applicant/plaintiff to move an application explaining the cause for delay and to seek condonation under Section 5 of the Limitation Act. Since the Lower Court did not grant any such opportunity, the dismissal of the application under Order 9 Rule 9 of the Code, as barred by limitation, was contrary to law.