SHYAMSUNDER Vs. PHULLO BAI

JUDGEMENT

(1.) This Civil Revison is directed against the order dated 27.4.2010 passed in Miscellaneous Civil Appeal No.18/2009 by Second Additional District Judge, Betul, whereby the order dated 29.10.2009 passed by Civil Judge Class II, Betul declining to restore Civil Suit No.8/2007, was affirmed.

(2.) It is matter of record that Civil Suit No.08/2007 filed by revision petitioners/plaintiffs Shyamsunder etc. was posted on 6.8.2004 for further orders. As per the order -sheet in the civil suit, the next date for plaintiffs' evidence was given as 18.8.2004. Since, none of the parties appeared on 18.8.2004, the suit was dismissed in default of the appearance of the plaintiffs and their advocate. Subsequently on 16.6.2006, the plaintiffs moved an application under Order 9 rule 9 of the Code of Civil Procedure together with an application under Section 5 of the Limitation Act for restoration of the civil suit and for condonation of delay in filing that application. After recording evidence of the parties, the trial Court dismissed both the applications by order dated 29.10.2009. The order dated 29.10.2009 was challenged before the Court of Second Additional District Judge, Betul, in Miscellaneous Appeal No.18/2009. Learned Additional District Judge dismissed the appeal and declined to restore the suit by impugned order dated 27.4.2010.

(3.) The orders passed by the Courts below have been challenged in this civil revision on behalf of the revision petitioners/plaintiffs Shyamsuder etc. on the grounds that plaintiffs had appeared along with their advocates before the Court on 6.8.2004. On that date, the case was adjourned but no further date was given to the plaintiffs. In the diary of plaintiffs' advocate, the next date has been recorded as 1.9.2004; however, in the order -sheet dated 6.8.2004, the next date has been mentioned as 18.8.2004 but there is overwriting in the date. The order -sheet dated 6.8.2004 was written afterwards, which is evident from the fact that the order -sheet dated 6.8.2004 has not been signed by either of the parties or their advocates. Consequently, none of the parties or their advocates appeared before the Court on 18.8.2004; whereon, the suit was dismissed in default on that date. On the same day i.e. on 18.8.2004, the tenure of the concerned presiding Judge abruptly came to an end and records of all pending cases in his Court were deposited in the record room; therefore, there was no one on 1.9.2004. in the Court to inform the plaintiffs regarding the fate of their suit. The plaintiffs tried to trace out the record of their suit, which took a long time. Ultimately, they learnt about the dismissal of their suit on 7.6.2006., during summer vacation. Thereafter, they expeditiously filed this application for restoration and the application for condonation of delay on 16.6.2006. In these circumstances, the limitation for filing the application for restoration would be three years, as per Art. 137 and not 30 days, as per Art. 123 of the Schedule appended to the Limitation Act.