PRADIP KUMAR DOHOTIA Vs. RUSTAMALI

JUDGEMENT

(1.) The instant petition poses a short but an interesting question. By the order impugned herein the learned court below has rejected the application filed by the present petitioner for restoration of his suit which had been dismissed for default, on the ground that the application for restoration was time barred and no separate application had been filed for condonation of delay. Is a separate application explaining the cause for the delay in filing the restoration application necessary, if the application contains the necessary facts and materials to that effect is the question which pleads to be answered in the instant revision petition.

(2.) I have heard Mr. D.C. Mahanta, learned Senior counsel, assisted by Miss C. Bhattacharjee, Advocate for the petitioners and Mr. G.C. Phukan, Advocate for the opposite party.

(3.) The relevant facts lie in a short compass. The predecessor in interest of the revision petitioners had filed a suit being T.S. No. 38/ 93 in the court of the learned Munsiff No. 1 Golaghat against the predecessor in interest of the present opposite party praying for restoration of possession of the land mentioned therein. The suit was posted on 25.4.94 for steps. As none of the parties was in attendance, the learned trial court by order dated 25.4.94, after recording that the parties were not present and that no steps had been taken directed that the suit be filed. The suit was, therefore, dismissed for non-prosecution. Later, on 4.7.94 an application was filed by the predecessor in interest of the present petitioners for restoration of the suit by setting aside the above order. The application was under Order 9 Rule 4 of the CPC, read with Section 151 of the code. It was stated therein that the predecessor in interest of the petitioners had engaged one Sri S.N. Saikia as his advocate to conduct the suit on his behalf and taken necessary steps therein and that he fully relied on the said Advocate in all matters relating to the suit. It was further stated that the predecessor in interest of the petitioner was at the relevant time suffering from Eye troubles for which he had to undergo an operation and was advised rest for few months. He also enclosed a certificate indicating the medical advice for his rest upto 1.7.94. The application disclosed that the predecessor in interest of the petitioner had come to know from one Syed Md III as, a defendant in the suit that the suit was dismissed on 25.4.94 in the absence of the parties. Further enquiries revealed that the Advocate engaged by the predecessor in interest of the petitioner had expired before the aforementioned date on which the suit was dismissed. It was therefore, pleaded in the petition that the omission to take steps on 25.4.94 was neither wilful, nor deliberate and that if the suit was not restored, the predecessor in interest of the petitioners would suffer irreparable loss and prejudice. The application was supported by a verification of the applicant.