SURESH KUMAR Vs. FIRM KURBAN HUSSAIN TAIYAB ALI

JUDGEMENT

(1.) The appellant being aggrieved by the order dated 8-1-1994 passed in M.J.C. No.0/94 by the learned IVth Additional Judge to the Court of District Judge, Bilaspur, rejecting the appellant's application filed under Order 9, Rule 7 read with Section 151, C.P.C. for restoration of Civil Suit No. 12-A/92 has preferred this appeal.

(2.) The brief facts necessary for the disposal of the appeal are that the appellants had filed the Civil Suit which was fixed for hearing on 30-9-1993. It was adjourned to 21-10-1993 and thereafter to 30-10-1993. The appellant submits that on 30-10-1993 their Counsel went to the Reader of the Court and the Counsel was informed that the suit has been adjourned to 10-12-1993 thereafter the Reader informed the appellant's Counsel that the suit was again adjourned to 7-1-1994. The Counsel went to the Reader on 7-1-1994 and was informed that the suit has already been dismissed in default on 30-10-1993. On 7-1-1994 itself the Counsel Shri M.B. Sharma moved an application for restoration of the suit with his own affidavit stating the facts and reasons. The learned Court below without issuing notice of the application to the other side itself examined the maintainability of the suit and by its impugned order came to the conclusion that as a formal application under Section 5 of Limitation Act has not been filed. The application for restoration was formally barred by limitation, holding so the application for restoration is dismissed. Being aggrieved by the said order the appellants have preferred this appeal.

(3.) The contention of the learned Counsel for the appellants is that if the Court was of the opinion that the application for restoration was barred by limitation then an opportunity for filing the application under Section 5 of Limitation Act for extension of time and condonation of delay ought to have been given to the appellant. He also submitted that the formal application under Section 5 would not be necessary if the affidavit stating the particular facts required for condonation of delay is already on record. He also submitted that on an oral application delay could be condoned as Section 5 of Limitation Act does not provide for an application. If the Court is satisfied that the appellant or the applicant had sufficient cause for not doing the act within the prescribed limitation was prevented by sufficient cause. The learned Counsel for the respondent on the other hand submitted that the Counsel for the appellant in the lower Court did know that the suitwas dismissed on 30-10-1993 and if the application for restoration was to be filed on 7-1-1994 then too an application under Section 5 of Limitation Act was must. In the alternative he submitted that if a formal application under Section 5 of Limitation Act is not required then too the proceedings would show that the request to the Lower Court was never made that the delay deserves to be condoned as the facts were on record which were required for constituting the application. The learned Counsel for the respondent also contended that according to Section 3 of Limitation Act the proceedings must be filed/instituted within the prescribed limitation otherwise those are liable to be dismissed although limitation has not been set up as a defence.