BANK OF BARODA Vs. SAVITA SAREE CENTRE

JUDGEMENT

(1.) By this Civil Revision Application, filed under Section 115 of CPC, the applicant is seeking to challenge the legality and the correctness of the order dated 20-1-1993 passed by the 3rd Additional District Judge, Akola rejecting the application for restoration filed by the present applicant. The applicant Bank of Baroda (for short the Applicant/plaintiff) filed the suit for recovery of amount against the non-applicants herein (for short the 'non-applicants/defendants') in the Court of Joint Civil Judge, Senior Division, Akola and the Civil Suit was Numbers as 73/1985. The said suit came to be dismissed on 2.5.1987. Against the Judgment and Decree passed by the Joint Civil Judge (Senior Division), Akola on 2-5-1987 dismissing the applicant's/plaintiff's suit, an appeal was preferred directly before this Court on 8.12.1987 and on 14.6.1988 this Court dismissed the appeal by directing the applicant/plaintiff to file an appeal in the Competent Court having jurisdiction over the matter and consequently on 15-6-1988, the applicant/plaintiff preferred an appeal in the Court of District Judge, Akola. Along with the appeal an application for condonation of delay was also made by the applicant/plaintiff. However, the applicant did not prosecute the said application diligently and on 25.7.1990 the said application for condonation of delay was dismissed in default. On 18.8.1990, an application was filed by the applicant/plaintiff for restoration of the application for condonation of delay and the said application has been dismissed by the 3rd Additional District Judge, Akola by the impugned order.

(2.) Mr. Jamali, the learned Counsel for die applicant submits that there was sufficient cause for non-appearance of the applicant and his Counsel before the Court below on 25.7.1990 and on that date due to the non-appearance of the Counsel for the applicant/plaintiff, the application was dismissed in default. But within 30 days, the application for restoration was filed and the Court below committed serious error of jurisdiction in rejecting the application for restoration.

(3.) Mr. Agrawal, though did not dispute the aforesaid facts, but submitted that the conduct of the applicant has been grossly negligent and despite the proper legal advice available to the applicant/plaintiff, against the judgment and decree dated 2.5.1987 passed by the Joint Civil Judge (Senior Division), Akola, an appeal was preferred before this Court when in fact, an appeal lay before the District Court and, thereafter when this Court dismissed the appeal filed by the applicant/plaintiff before this Court, against the judgment and decree dated 2-5-1987 and directed the applicant/plaintiff to prefer an appeal before the District Judge having jurisdiction over the matter. On 15.6.1988, the appeal was preferred by the applicant/plaintiff alongwith the application for condonation of delay. On 25.7.90, when it was called for hearing, the learned Counsel for the applicant/plaintiff did not appear on behalf of the applicant and therefore, the Court below rightly dismissed the application in default and since no good cause for non-appearance on 25.7.1990 was shown, the application for restoration also rightly came to be dismissed.