SAMIRAN SAHA Vs. JATINDRA MOHAN ROY

JUDGEMENT

(1.) The present revisional application under section 115 CPC in directed against the order of the trial Court allowing an application under Order 9 Rule 9 CPC.

(2.) A suit was dismissed for default in appearance of the plaintiff on 30.11.94. The plaintiff filed an application under section 151 CPC praying for restoration of the suit on that very date. The said application was heard and the court rejected that application with the observation that in view of the provisions of Order 9 Rule 9 CPC section 151 could not be invoked. The plaintiff thereafter filed the application under Order 9 Rule 9 CPC on 2.2.95 along with an application under section 5 of the Limitation Act praying for condonation of the delay in filing the application under Order 9 Rule 9 and by the impugned order the court allowed the said two applications.

(3.) Mr. Priyabrata Mukherjee, the learned senior counsel appearing for the defendant challenged the impugned order on the following grounds. It was contended that the application under Order 9 Rule 9 CPC was filed after the expiry of the prescribed time limit and that the learned Judge committed a jurisdictional error in deciding and disposing of the application under Order 9 Rule 9 CPC together with the application that was filed under Order 9 Rule 9 CPC together with the application that was filed under section 5 of the Limitation Act for condonation of the delay. In this connexion Mr. Mukherjee wanted this court to draw an analogy from the provisions of Order 41 Rule 3A of CPC which makes it imperative for the appeal Court to decide the question of limitation first before it proceeds further with the appeal. It is submitted that the learned Judge should have disposed of the application under section 5 of the Limitation Act before he proceeded to dispose of the application under Order 9 Rule 9. It is further contended that in the application under section 5 of the Limitation Act, the plaintiff respondent did not explain the delay that was occasioned for filing the application under Order 9 Rule 9 with effect form 30.11.94, the date on which the order of dismissal of the suit was passed. Limitation actually began to run from 30.11.94, the date on which the order of dismissal of the suit was passed and not on from the date on which the subsequent application under section 151 CPC rejected. In the circumstances, it was contended that the learned Court below was not justified in allowing the application under section 5 of the Limitation Act. Moreover, it was contended that even on merits the learned Judge was not justified in allowing the application under Order 9 Rule 9 CPC because of the fact that the default on the part of one Subimal Dey who is said to be the advocate of the plaintiff in appearing before the court in time on 30.11.94 is alleged to be the ground of default in appearance on the part of the plaintiff respondent in the suit when the suit was called on for hearing and dismissed on 30.11.94 and there is nothing on record to show that the said Subimal Dey was the advocate appointed to act on behalf of the plaintiff respondent under Order 3 Rule 4 CPC. In the circumstances, it is contended by Mr. Mukherjee that the plaintiff respondent could not be allowed to bank upon the default on the part of the said Subimal Dey in appearing before the Court at the time when the suit was called on for hearing and dismissed. Finally, it was contended that the plaintiff respondent executed a Vakalatnama in favour of one Ramchandra Banerjee in connexion with the suit and as such, the question of non appearance of the said Subimal Dey at the appropriate time was not at all relevant particularly when the plaintiff respondent has nowhere assigned any reason as to why the said Ramchandra Banerjee was not present at the time of call.