T.R. KALRA Vs. STATE

JUDGEMENT

(1.) THE petitioner filed an application before the learned District Judge seeking for the setting aside the award dated 20.11.1981, filed in the Court for being made rule of the Court. The application of the petitioner was dismissed in default on 30.9.1996, due to the non -appearance of the petitioner and his counsel. The award was consequently made rule of the Court followed by a decree.

(2.) THE petitioner on 8.3.2000 filed restoration application seeking the recall of the order dated 30.9.1996. He also filed an application seeking condonation of delay on the ground that he remained in bed for a period of more than three years due to disc problem occurring in the month of September 1996, That his advocate had all along made him to believe that his presence on every date of hearing was not necessary. That it is only in the month of January 2000 when he contacted his lawyer he came to know about the dismissal of the application. Where after the restoration application has been filed. The respondents contested the claim of the petitioner in their objections. In support of the application only the petitioner stepped into the witness box.

(3.) LEARNED counsel for the petitioner argued that the petitioner has been seriously contesting the case and has been non -suited by the learned trial court by giving a narrow construction to the provision contained in Section 5 of the Limitation Act. According to him in view of the law laid down by the Apex court in case The State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749, the expression 'sufficient cause' used in Section 5 has to be construed liberally, he has argued that the petitioner had sufficiently explained the causes which led to the delay in filing restoration application but the learned court below without appreciating the facts properly came to the view that delay has not been explained sufficiently. He has also contended that he had engaged a counsel and done everything he was expected to do but his counsel was negligent in not appearing before the court though he did told him that there was no necessity of appearance of the Petitioner on every date of hearing. In this situation, he was not in a position to contact his counsel because of his being ill so he cannot be penalized for the negligence of his counsel. He has relied upon AIR 1981 J&K; 95.