MADANCHAND AND BROTHERS Vs. BANK OF BARODA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner.

(2.) BY this revision petition, the petitioner is challenging the order dated 12. 04. 2004 by which the appellate court allowed the appeal of the plaintiff respondent bank and set aside the dismissal of the suit, which was dismissed in default.

(3.) LEARNED counsel for the petitioner vehemently submitted that the first appellate court has not considered the reasons given by the Trial Court and the application under Section 5 of the Limitation Act, which was filed by the plaintiff-bank in appeal, cannot be considered as an application, which is required to be filed before the Trial Court for condonation of delay in moving the application for restoration of suit. It is also submitted that the reasons given by the plaintiffs for their absence on the relevant date is not sufficient ground for setting aside the order of dismissal of the suit. The learned counsel for the petitioner submits that this court in a recent judgment delivered in the case of M/s. Jugal Bhatia Pvt. Ltd. vs. Shri Nath Cement Industries Pvt. Ltd. (2), held that even if, the advocate told the litigant that he will inform the litigant to remain present in the court, cannot help the careless and negligent litigant and even if, said assurance was given, still the litigant is required to contact with his advocate and in view of the above, the reason given by the plaintiff is not sufficient for condonation of delay.