GAMMON INDIA LTD Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) In this application in revision by some of the defendants some interesting questions have been raised for decision.

(2.) The plaintiff opposite party instituted a money suit for recovery of a sum above Rs. 35,000/- against the defendants. By order dated 1-11-1971 the court below called upon the plaintiff to take steps for fresh service of summonses upon defendants 4 and 5. Although service of summons upon the principal defendant (Petitioner No. 1) had been validly effected as agreed at both the hands in this Court, the court below, in the same order as well as in the impugned order, has recorded that service upon the said defendant had not been effected as the summons had been mis-sent. However, in spite of several adjournments the plaintiff failed to take any steps in regard to the filing of the process, etc. for service of summons on the aforesaid defendants and ultimately by order dated 5-7-1972 the suit was dismissed for default. Long thereafter an application under Order IX Rule 4 of the Code of Civil Procedure (hereinafter to be referred to as the Code) was filed by the plaintiff on 28-11-1972 for restoration of the suit. It was stated in the petition that the plaintiff's "Law Clerk missed to forward a date in his diary for the said money suit and thus the case escaped the diary. The aforesaid mistake was detected during the last annual vacation and thereafter your petitioner's lawyer attempted to obtain information by filing inspection of the records ...... and it was learnt after inspection on 27-11-1972 that the suit had been dismissed for default." It was further contended on behalf of the plaintiff in the said application that it has not committed any wilful mistake nor has it indulged in negligence in the matter and the dismissal of the suit would put it to irreparable loss and injury.

(3.) Article 122 of the new Limitation Act (hereinafter to be referred to as the Act) has prescribed a period of limitation of thirty days for restoration of a suit dismissed for want of prosecution or failure to pay costs of service of process, etc, and the period of limitation begins to run from the date of dismissal. When the 'question of limitation was raised during the course of the hearing of the application, the plaintiff filed a petition under Section 5 of the Limitation Act for condonation of the delay, perhaps, applying the ground mentioned in Section 17 (1) (c) of the Act, which prescribes that in the case of an application, for which a period of limitation is prescribed by this Act, the period of limitation shall not begin to run until the applicant has discovered the mistake if his application is for relief from the consequences of a mistake under Clause (c). The learned Subordinate Judge reached the following findings:-- (i) There was no sufficient cause for non-appearance of the applicant in the suit which may lead to the restoration of the suit to its original file. (ii) In view of the fact that Section 5 of the Limitation Act applies to the cases under Order IX Rule 4 of the Code, the period of Limitation can be condoned in this case. (iii) There being no evidence that the applicant had knowledge about the dismissal of the suit before 27-11-1972, there was sufficient reason for the applicant for not filing the miscellaneous petition within 30 days from the date of the dismissal of its suit and therefore the period of limitation was fit to be condoned. (iv) For the failure of the plaintiff to file fresh requisites for service of summons on defendants 4 and 5, the dismissal of the entire suit did not appear to be correct. Therefore the order of dismissal was fit to be set aside and the suit fit to be restored to its original file.