SANTOSH Vs. TEK CHAND

JUDGEMENT

(1.) I.A. No. 5993/2005 has been filed by Smt. Maya Chauhan, plaintiff No. 2 in the present suit under the provisions of Section 5 of the Limitation Act, 1963 praying for condonation of delay in filing of I.A. No. 5992/2005 whereby restoration of the suit which was dismissed for default of appearance has been sought.

(2.) Inasmuch as the facts and reasons for condonation of delay and for restoration of the suit are identical, these applications are taken up together.

(3.) Four sisters as plaintiffs have filed the present suit seeking partition of property which was claimed as ancestral property as well as for rendition of accounts. It has been stated that Smt. Santosh, plaintiff No. 1 was prosecuting that matter on behalf of all the sisters. The suit was initially filed in the District Court but was transferred to the High Court of Delhi. Counsel who was engaged to handle the matter before the District Court had expressed inability to pursue the case and consequently the plaintiffs were compelled to change the Counsel. The Counsel who was then engaged by the plaintiffs also expressed difficulty in pursuing the present matter. As the plaintiff No. 1 had advised that she was having good contract with the Advocate, at her instance, the plaintiff had agreed and also engaged Shri R.S. Malik and Shri Rajbir Singh as Counsel on the plaintiff's behalf. These Counsel had filed Vakalatnama on the 21st of February, 2003. However, even though the matter was listed on that day, for reasons not known to the applicant, the Counsel failed to put in appearance. The applicant/plaintiff No. 2 had been informed by her sister Smt. Santosh, plaintiff No. 1 that the new Counsel would adequately represent their interest and she would be pursuing the matter with them with regard to the status of the case and steps to be taken in the case. As such, in the bonafide belief that the Counsel and plaintiff No. 1 would pursue the matter and the applicant would be informed as and when any steps were to be taken by her, the applicant had left the responsibility of defendant of the day-to-day hearing to hersister and the Counsel. Despite this assurance, the applicant has stated that Smt. Santosh, plaintiff No. 1 left for a foreign destination without informing the applicant. The applicant also has received no information with regard to the status of the case from the Counsel who had been engaged by Smt. Santosh, plaintiff No. 1. It was only in the first week of July, 2005 when the plaintiff No. 2 visited the village where the suit property was located that she learnt from the villagers that Smt. Kanta Devi, the legal representative of defendant No. 1 was attempting to sell the property on the ground that she had won the case which had been filed by the plaintiffs before this Court. The applicant made immediate efforts to contact Mr. R.S. Malik, Advocate in which attempt she failed. Upon inquiries, the applicant further learnt that Smt. Kanta Devi had withdrawn the amount deposited in the bank in the form of fixed deposit receipt.