NAGARJUNA PATNAIK Vs. JAYKAY CONSTRUCTION

JUDGEMENT

(1.) The Appellant seeks to assail the order dated 3 -4 -1992 passed by the 1st MACT, Sambalpur in Misc. Case No. 35 of 1991 arising out of MAC Case No. 80 of 1987. By the impugned order the Learned Tribunal has rejected the prayer of the Appellant to restore the aforesaid MAC Case which was dismissed for default on 21 -3 -1990. As it appears from the narration of facts in the impugned order, the aforesaid MAC Case was filed by the Appellant and the Tribunal directed to issue notice to the two Opposite Parties. Requisites for issue of notice were duly filed by the Appellant and notice was issued to Respondent No. 1. The order passed on 21 -11 -1989 reads as follows: Advocate for the petitioner files a petition for time to take step against OP -2. S.R. of OP -1 not back. Call on 5 -4 -90 for taking steps against OP -2 and awaiting S.R. of OP -1. Issue reminder for S.R. of OP -1. Thereafter the case was adjourned to several dates. The case was posted to 21 -3 -1990 for filing of deficit requisites for taking out notice on Opposite Party No. 2. On that date, as it appears from records, without filing the deficit requisites as above, Hazira was filed in the case and by the impugned order the case was dismissed for default. Thereafter a petition was filed under Order 9, Rule 5 read with Section 151 CPC for restoration of the MAC Case and the said petition was registered as aforesaid M.C. No. 35 of 1991 which has been dismissed by the Learned Tribunal by the impugned order on the ground that the said petition was filed beyond the period of limitation.

(2.) BY order dated 3 -9 -1992 this Court admitted the Miscellaneous Appeal and directed issue of notice to the Respondents. Notice on Respondent No. 2 was personally served on him and the service was held sufficient. However notice on Respondent No. 1 could not be served. This Court permitted the Appellant to take notice on Respondent No. 1 by substituted service. Thereafter notice having been published in newspaper, this Court held that service of notice on Respondent No. 1 was sufficient. Though Respondent No. 2 appeared before this Court through his Counsel, when the matter was taken up today, no Counsel for Respondent No. 2 was present.

(3.) THIS Court heard Learned Counsel for the Appellant at length and perused the order sheets of the Court below and other materials. Fact remains, notice was issued to Opposite Party No. 1 and the Tribunal awaited the service return. The Appellant who was the applicant in the MAC Case though had filed requisites for issue of notices on Opp. Party No. 2, the same were deficit. Accordingly, the Learned Tribunal by order dated 16 -2 -1990 directed to file deficit requisites and posted the case to 21 -3 -1990. On the said date however instead of filing the deficit requisites, only Hazira was filed and therefore the Learned Tribunal dismissed the case for default. As would be evident from records, notice had already been issued to Opposite Party No. 1 in the said MAC Case. Thus under no circumstances the MAC Case could have been dismissed for default so far as Opposite Party No. 1 was concerned. If the Appellant did not take steps for taking notice on Opposite Party No. 2, at best the Learned Tribunal could have dismissed the case as against Opposite Party No. 2 only. Thus the impugned order suffers from the aforesaid infirmity. Even otherwise, a petition for restoration of the MAC Case was filed, but then there was some delay. In view of the fact that by an erroneous order the MAC Case had been dismissed as a whole, this Court feels that the Learned Tribunal ought to have been liberal and condoned the delay.