Punjab And Sind Bank vs Smt. Koel Kanta Kohli And Ors.
2003 Latest Caselaw 1302 Del

JUDGMENT

S.K. Mahajan, J.

1. This appeal is directed against the order of the learned Additional District Judge whereby the applications of the appellant under Order 9 Rule 9 CPC for restoration of the suit and under Section 5 of the Limitation Act for condensation of delay were dismissed.

2. The plaintiff bank had filed suit for recovery against the respondents on the allegations as set out in the plaint. One of the witness of the plaintiff, namely, Jeewan Kumar, Head Cashier, Branch Office Okhla was examined by the Court on 20.12.1996 and his cross-examination was deferred at the request of the defendant. Thereafter the matter was adjourned from time to time, sometimes at the request of the plaintiff and sometimes at request of the defendant and lastly it was fixed on 20.9.2000. The lawyers were on strike on that day and though PW-1, the witness of the bank was present in Court but his cross-examination could not be conducted due to the strike of the lawyers and the matter was therefore, adjourned to 13.12.2000. As no one appeared on behalf of the plaintiff on 13.12.2000, the suit was dismissed in default. An application for restoration of the suit was filed on 24.2.2001. Along with the application an application under section 5 of the Limitation Act for condensation of delay in filing the application for restoration was also filed stating inter alia that Mr. P.P. Kohli, advocate who was working with Mr. Ajit Singh, advocate was looking after the case on behalf of Mr. Ajit Singh, advocate and he did not inform the bank about the matter being fixed on 13.12.2000 and consequently no one was present on behalf of the bank on the said date. It is submitted that prior to the date of hearing, i.e., 13.12.2000, Mr. P.P. Kohli, advocate unfortunately died in an accident and consequently even the counsel could not appear in Court on the date when the matter was fixed for hearing and it was only in the middle of February, 2001, when the Manager of the Friends Colony Branch visited the zonal office of the plaintiff bank that the bank came to know that Mr. Kholi had expired and immediately thereafter they contacted the advocate and after inspection of file became aware of the suit having been dismissed in default on 13.12.2000.

3. Reply to the application was filed by the respondents and it was stated therein that the bank had been careless in conducting the case and even earlier the suit was dismissed in default but the same was restored on an application having been filed. It is, therefore, submitted that no case was made out by the bank for restoration of the suit. As already mentioned above by the impugned order the applications were dismissed.

4. A perusal of the Trial Court file shows that the witness of the appellant was present in Court on 20.9.2000 the case was adjourned at request of the respondent. A perusal of the file also shows that it was Mr. Kohli, advocate who had been appearing on behalf of the plaintiff and was conducting the case on its behalf. Since before the date of hearing when the suit was dismissed in default Mr. Kohli had unfortunately expired, it is but natural that the bank may not be aware of his death and as it was only the witness who was present in Court on 20.9.2000 nobody in the bank knew about the date when the matter was fixed for hearing. In my opinion, therefore, there was sufficient cause for non-appearance of any one on behalf of the plaintiff in Court on 13.12.2000 when the suit was dismissed in default. Even otherwise with a view to do substantial justice between the parties suit should have been restored unless of course malafides were imputed to the appellant. Looking to the conduct of the plaintiff, in my opinion, no malafides can be imputed to the plaintiff in conducting the case. Since the plaintiff was not aware about the dismissal of the suit on 13.12.2000 and there was also sufficient cause in not presenting the application for restoration within time, I allow this appeal, set aside the impugned order and also allo both the applications condone the delay in filing the application under Order 9 Rule 9 CPC and restore the suit to its original number subject, however, to the payment of Rs. 2000/- as costs.

5. Parties are directed to appear before the Trial Court on 16.12.2003.

6. Trial Court file be sent back immediately.