Universal Builders & Contractors vs Sheila Singh Uppal & Others
2008 Latest Caselaw 1830 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          C.R. Petition No.321/2004

                      Judgment reserved on :   17th September, 2008

                      Judgment pronounced on : 17th October, 2008

Universal Builders & Contractors       ...Petitioner
                    Through : Mr. Harish Malhotra, Sr. Adv.
                                with Mr. Rajinder Aggarwal &
                                Mr. Vipul Gupta, Advs.

           Versus

Sheila Singh Uppal & Others         ....Respondents
                   Through : Mrs. C.M. Chopra, Sr. Adv. with
                             Ms. Maldeep Sidhu, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?                                             Yes

MANMOHAN SINGH, J.

1. This revision petition has been filed against the order dated

13th May 2004 passed by Additional District Judge, Delhi in

Suit No.286/2003, whereby the application of the plaintiff

under Order IX Rule 9 for restoration of suit which was

dismissed in default on 7th February, 1996 was allowed

Respondent No.1 (hereinafter referred to as plaintiff) filed a

suit for specific performance and damages on 5th February,

1988 in respect of the provisional booking of the flats at the

fourth floor of the building called Praveen apartments(now

known as golf apartments) at Sujan Singh Park South, New

Delhi.

2. Learned Senior counsel for the petitioner (Defendant in the

suit) has argued that the suit was dismissed in default on 7 th

February 1996, the respondent no. 1 was always negligent

and had shown total callousness and utter disregard for

prosecution of the suit and the conduct of the respondent

no. 1 is apparent from the various orders passed by the

learned trial court even prior to the dismissal of the suit.

Learned senior counsel has also made his submission that

after the dismissal of the suit on 7th February 1996 the

respondent no. 1 filed an application under Order IX Rule 9

Code of Civil Procedure read with Section 151 Code of Civil

Procedure for restoration of the suit on 10th May, 1996

which was also not in time. He has further argued that why

respondent no. 1 did not enquire from Advocate for long

years about the progress of the suit and even after filing of

the application under Order 9 Rule 9 Code of Civil

Procedure, the record for the period 10th November 1996 to

17th January 2000 reveals that the respondent no. 1 was

thoroughly negligent in taking steps for service of notice of

the application to the petitioner. Lastly, it is submitted that

the application is barred by limitation having been filed

beyond 30 days from the date of dismissal of the suit

without any application of the condonation of delay.

3. On the other hand learned Senior counsel for the

respondent no. 1 has made her submissions that the earlier

counsel for the respondent no. 1 was bed ridden from 31st

May 1992 till he expired on 3rd February 1995. It was not

disputed by the respondent no. 1 that no enquiry regarding

the progress of the case was made by respondent no. 1 from

31st May 1992 when her earlier counsel who became bed

ridden for a period of almost 4 years, she was also not

aware about the death of Sh. G.R. Chopra, Advocate.

Therefore, in view of above, sufficient cause exists within

the meaning of Order 9 Rule 9 read with Section 151 Code

of Civil Procedure. It is argued that the past conduct of the

respondent no. 1 has not very much relevant while deciding

the application under Order 9 Rule 9 Code of Civil

Procedure and if the court is satisfied about the sufficient

cause for non appearance then the said application is liable

to be allowed. The submissions have been made that as per

well settled law liberal approach should be adopted by the

courts. It has been further argued that in case the

application under Order 9 Rule 9 has been filed beyond the

time, no application under Section 5 of the Limitation Act is

required and the delay should be condoned on the basis of

the averments itself if the same discloses sufficient cause for

delay in filing.

4. a) In the instant case, no doubt on the date of filing of the

application i.e. 10th May 1992 there was a delay of 62 days

as per record and no application for condonation of delay

under Section 5 of the Limitation act was filed.

b) It is not in dispute that Sh. G.R. Chopra was the earlier

counsel engaged by the respondent no. 1 who was bed

ridden between 31st May 1992 onwards till he died on 3rd

February 1995 and due to his prolonged illness he was not

appearing for long time before the courts and the suit was

dismissed in default on 7th February 1996.

c) There is a delay in filing of the application but at the

same time the explanation given by the respondent no. 1 is

that the respondent no. 1 was not aware about the death of

the Advocate nor did she enquire about the progress of the

matter during the said period.

5. The trial court while allowing the application of the

respondent no. 1 for restoration of the suit held that a party

against whom an order of dismissal in default is passed has

a right to approach the court and satisfy it that he or she

was prevented by sufficient cause from appearing before

the court on the date when default occurred. Only ground

for restoration of a suit under Order IX Rule 9 Code of Civil

Procedure is the existence of sufficient cause for non-

appearance of the party at the time the suit was called for

hearing. The term „sufficient‟ cause has not been defined

anywhere.

6. It is further held by the learned trial court that it is a

question of fact depending upon the circumstances of each

case. The court should adopt liberal approach while

determining whether sufficient cause exists. Prolonged

illness of the advocate engaged by the applicant/plaintiff

to conduct her cause and his death after prolong illness on

3rd February, 1995 do constitute sufficient cause required

under Order IX Rule 9 of Code of Civil Procedure. The past

conduct of the plaintiff during progress of the suit is not of

much importance while the court is satisfied about the

sufficiency of cause of non-appearance of the plaintiff on

the date of hearing when the suit was dismissed in default.

7. As per Article 122 of the Limitation Act, the application

should be filed within 30 days from the date of the

dismissal of the suit in default for restoration. No separate

application is required and the delay can be condoned on

the basis of averments in the application for the restoration

of the suit, the separate application under section 5 of

limitation act is not a necessity.

8. In the case of Devinder Pal Sehgal & Anr. V. M/s Partap

Steel Rolling Mills Pvt. Ltd. & ors.; JT 2001 (10) SC 463,

Apex Court clearly laid down the above proposition. An

oral prayer for condonation under Section 5 of Limitation

Act is sufficient. Formal application in writing is not

necessary for granting relief under Section 5 of Limitation

Act. Thus the trial court rightly condoned the delay in

filing an application under Order 9 Rule 9 Code of Civil

Procedure even in the absence of any separate application

under section 5 of limitation act.

9. In the case of Devinder Pal Sehgal (supra) the Apex Court

clearly laid down in para 7 as follows :-

"We have perused the restoration application as well as petition filed under Section 5 of the Limitation Act for condonation of delay in filing the same. It appears that in the application for restoration, all relevant facts have been stated not only to show that the plaintiffs had sufficient cause for non appearance on 24th August, 1988 but also to show sufficient cause for condonation of delay in filing the restoration application. This is the reason why in the petition for condonation of delay, it has been simply stated that facts stated in the restoration application may be taken into consideration for condonation of delay in filing the restoration application.

Therefore, merely because in the order of trial court, specifically, there is no reference to petition for condonatino of delay, it cannot be said that it did not consider the same. From a bare perusal of the order, it would appear that the grounds stated in the restoration application for non appearance on 24th August, 1988 as well as delay in filing the restoration application having found favour with the trial court, the suit has been restored, therefore, it cannot be said that the order of restoration has been passed without condoning the delay in filing the restoration application. The submission of the learned counsel appearing on behalf of the respondent that application for restoration filed on behalf of the plaintiffs was dismissed earlier for non prosecution cannot be taken to be a ground for throwing out the restoration application as the High Court on the earlier occasion set aside order of the trial Court whereby restoration application was dismissed for non-prosecution and the said order attained finality. In view of these facts, we are of the opinion that trial court had not acted in the exercise of its jurisdiction illegally or with material irregularity and accordingly the High Court was not justified in interfering with its order in the exercise of revisional jurisdiction."

10. Section 5 of Limitation Act provides for the extension of the

prescribed period in certain cases which reads as under :

"Section 5. Extension of prescribed period in certain cases

Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

11. From the bare reading of the above provision it can not

even be implied in law that the power of the court to

condone the delay is circumscribed by an application being

filed. The power to condone delay can be exercised if the

applicant satisfies the court that he had sufficient cause for

not filing the appeal within the period prescribed. The

court can be satisfied even from the affidavits or the

documents on the record.

12. It is not necessary in law that an application must be filed.

Of course as a matter of practice the applicant files such an

application. But the power of the court is not necessarily

dependent on a formal application being made by the

applicant. If it is made, well and good; but if it is not made

and only an oral prayer is made for condonation of delay

the court is not powerless if there is material on the record

to show facts constituting sufficient cause for condonation

of delay.

13. In Nand Singh v. Estate Officer & Ors.; AIR 1993 Delhi

38, it was observed that even an oral application for

condonation is sufficient cause for condoning the delay, no

formal application in writing is necessary. We consider in

the interest of justice the averments in the restoration

application should be entertained and the relief under

Section 5 of the Act should be granted. Similar observations

were made in AIR 1989 Gujarat 44.

14. The learned Senior counsel for the petitioner has relied

upon P.K. Ramachandran vs. State of Kerala & anr. AIR

1998 Supreme Court 2276 and on Badri Bhagat

Jhandewalan Temple vs. Delhi Development Authority 2003

IV AD (DELHI) 299. I feel that the said decisions cited by

learned counsel for the petitioner are not applicable to the

facts and circumstances of the present case. In the case P.K.

Ramachandran vs. State of Kerala & anr. (supra) the

application for condonation of delay was ordered to be

dismissed on the ground that no explanation were offered

by the applicant and there was a delay of 565 days.

Similarly, in another case Badri Bhagat Jhandewalan

Temple vs. Delhi Development Authority (supra), the

decision was entirely based on different facts. In the said

case, the application under Order 9 Rule 13 was filed after

the suit was finally decided by the Court on merits when

even plaintiff adduced the evidence by way of affidavit. In

the present case, suit in question is at an early stage. In this

case, sufficient cause has been shown before the learned

trial court who has given specific finding in this regard.

Otherwise this court agrees that court should not show any

latitude and indulgence to any irresponsible litigant.

15. In view of settled law on the subject, this court is of the

view that no separate application to condone the delay

under Section 5 of Limitation Act is necessary to set aside

the order of dismissal in default in an application for

restoration. If the ground seeking setting aside ex parte

decree and condonation is one and the same, the delay can

be condoned on the basis of the averments made in the

restoration application.

16. In the present case although the respondent no. 1 appears to

be not as vigilant as he ought to have been, but in view of

the nature of the present case and by showing sufficient

cause the application under Order 9 Rule 9 of the Code of

Civil Procedure was allowed by the learned trial court by

exercising its discretion subject to imposing the cost of Rs.

5,000/- for the said default and restore the suit to its

original position.

17. In view of the nature of the present case and doing

substantial justice for disposal of the matter on merit, this

court is not inclined to interfere with the discretion

exercised by the leaned trial court which has come to the

conclusion that there is a sufficient cause shown by the

respondent no. 1 for filing the application under Order 9

Rule 9 read with Section 151 Code of Civil Procedure.

18. In view of the above said reasons, the revision petition is

hereby dismissed. No costs.

MANMOHAN SINGH, J.

October 17, 2008 sa/ns