B S LAMBA Vs. M A KANTH

JUDGEMENT

(1.) Application for restoration of an application for restoration of a suit which was dismissed in default has been resisted to be barred by time besides other objections raised by the respondent. The facts giving rise to the filing of the present petition are that a suit filed by the plaintiff for declaration with consequential relief of injunction was dismissed for default of appearance and non-prosecution by the plaintiff vide Court order passed on 24-5-1988. An application for restoration of the said suit was filed in the Court on 30th Aug., 1988 which was dismissed for default of appearance on 30-1-1989. The present application was filed in the Court on 7-3-1989 without there being any separate application for condonation of delay or extension of time.

(2.) I have heard the learned counsel for the parties and perused the record.

(3.) Art. 163 of First Schedule to the limitation Act provides that an application for an order to set aside a dismissal for default of appearance or for failure to pay costs of services of process or to furnish security of cost may be filed by a plaintiff within 30 days from the date of the dismissal. It is argued by the learned counsel for the petitioner that Art. 163 cannot be stretched to make applicable to applications of the nature which has now been filed by the plaintiff in the instant case. It is argued that the provisions of the aforesaid article are applicable to the initial application for restoration of the suit dismissed for default, and not to an application for the restoration of such application dismissed for default. The argument of the learned counsel if tested on the touch stone of reason is apparently misconceived and if accepted would result in the miscarriage of justice. The article finds its place in the 3rd Division of the schedule pertaining to the applications and deals with the applications filed by a plaintiff for an order to set aside a dismissal for default of appearance. There is conflict of authorities of different High Courts regarding the maintainability of such applications but consensus is that such application is maintainable provided the same is filed within the time specified under Art. 163 of the Limitation Act. It was held in Thali Venkata Seetharamay v. Venkataramaya, AIR 1914 Madras 439 that where in a suit dismissed for default of plaintiff an application for restoration of the suit was dismissed also for default of appearance, the second application filed was governed by the provisions of Art. 163 of the Limitation Act reqiuiring the same to be filed within thirty days. In Nanak Chand v. Paras Ram, AIR 1958 Him Pra 9, reliance was placed upon AIR 1914 Madras 439 (supra) and AIR 1927 Cal 534 and it was held :