Shri J.L. Barua vs Shri Sanjay Das Gupta
2004 Latest Caselaw 185 Del

JUDGMENT

Vikramajit Sen, J.

1. No representation/appearance has been put in for the Respondent on 14.8.2003 or today. It appears that the Plaintiff/Petitioner had filed a suit for recovery of Rs.51,000/- which was dismissed in default on 5.8.1998. An application for restoration of the suit was also dismissed on 21.1.1999 against which a Petition had been filed under Article 227 of the Constitution, which was disposed of by Orders dated 4.4.2002 permitting the Petitioner to file either an application for restoration of suit or an Appeal. The Plaintiff/Petitioner has elected to file an application for restoration of set on 17.4.2002 i.e. within a fortnight of the disposal of the petition under Article 227 of the Constitution. The application has been rejected by the Trial Court on the grounds that sufficient cause has not been shown for the delay.

2. Reliance has been placed on the decision of this Court in Kailash Devi Vs. Priti Mandal and another, 1988(1) HLR 84, wherein it has been held that an application for restoration of an application to set aside an ex parte Decree dismissed in default would be three years as it is governed by the residuary provision under Article 137 and not by Article 123 of the Limitation Act, 1963. These provisions read thus :-

Description of Period of Time from which application limitation period beings to run

123. To set aside a decree Thirty days The date of the decree passed ex parte or where the summons to re-hear an appeal or notice was not duly decreed or heard ex served, when the parte. Applicant had knowledge of the decree.

Explanation-For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.

137. Any other application three years When the right to for which no period of apply accrues. limitation is provided elsewhere in this division.

3. Accordingly, the period of limitation was held to be three years and not 30 days in the context of an application for the restoration of another application dismissed in default. In M/s C.P.Properties Ltd. Vs. M/s Matadin Bhagwan Dass and others, 1993 Civil Court Cases 484 (ALLAHABAD) it has been held that the limitation for filing an application for restoration of a previous application for the restoration of the suit would be governed by Article 137 of the Limitation Act and could therefore be filed thin three years of the dismissal of the first application for restoration. I am in respectful agreement with these decisions.

4. The Trial Court has committed an error in proceeding on the assumption that the application for restoring the previous application for restoring the suit had been filed beyond the period prescribed under the Limitation Act without tendering any cause for condoning the delay. The fact remains that the Petitioner was bona fide prosecuting his Petition under Article 227 of the Constitution and within a fortnight of its dismissal had elected to pursue one of the reliefs for which liberty had been granted them. Therefore, sufficient cause has been shown for the delay. In other words, once it is seen that the period within which an application for restoration of the application for the restoration of the suit could have been filed on or before 20.1.2002, he filing of this application on 17.4.2002 upon the Civil Main Petition being disposed of on 4.4.2002 sufficiently explains the delay. In these circumstances, the Revision is allowed and the impugned Order is set aside. The suit is remanded to the Lowe Court subject to the Petitioner depositing a sum of Rs.2,000/- in favor of Legal Aid for Poor, Women, SC, ST and Children, Delhi High Court, New Delhi within four weeks from today. The Petitioner/Plaintiff to appear before the Commercial Civil Judge, Delhi on 8.3.2004. The learned Judge shall thereafter proceed in the matter de novo, and shall consider and decide the application of the Petitioner under Order IX Rule 4 for the restoration of the suit.