Davinder Pal Sehgal & Anr vs M/S Partap Steel Rolling Mills ...

on 13 December, 2001

The application for restoration was dismissed for non prosecution on 21st November, 1994 as
nobody appeared on behalf of the plaintiffs whereupon another application was filed on 21st
December, 1994 for restoration of the same, which was dismissed on 19th September, 1995 by
the trial court. When the said order was challenged by way of C.R.No. 556 of 1996 filed before
the High Court, the same was allowed on 27th August, 1996, by which order of trial court was
set aside and application under Order 9 Rule 9 of the Code which was filed on 18th October,
1988 for restoration of the suit was restored and the trial court was directed to dispose of the
same on merit. It may be stated that after remand, on 28th October, 1997 a petition was filed
under Section 5 of the Limitation Act for condonation of delay in filing
the restoration application.

The trial court by its order dated 12th December, 1997 having found that sufficient cause was
shown for restoration, allowed the application and restored the suit to its original file. When
the said order was challenged before the High Court in revision, the same has been allowed, the
order of the trial court restoring the suit set aside and application for restoration dismissed on
the ground that there was no consideration by the trial court on the point of limitation. Hence,
this appeal by way of special leave.

Learned counsel appearing on behalf of the appellants submitted that the grounds
for restoration as well as condonation of delay were fully enumerated in
the restoration application, a rejoinder whereto was filed and the trial court while passing the
order for restoration, having considered facts stated in the restoration application and
rejoinder and being satisfied with the cause shown in the restoration application would be
deemed to have condoned the delay in filing the restoration application as such the High Court
was not justified in interfering with the order of the trial court as there was no error of
jurisdiction therein. On the other hand, learned counsel appearing on behalf of the respondents
submitted that this Court should not interfere with the impugned order as
the application for restoration was earlier dismissed for non prosecution.

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 condonation 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 respondents 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.

Damodaran Pillai & Others vs South Indian Bank Ltd on 8 September, 2005

The basic fact of the matter is not in dispute.

The respondent herein obtained a decree against the appellant herein for a sum of Rs. 78,155.80
in a suit being No. 178/84 filed before the Principal sub-Judge, Kollam. An Execution Petition
was filed by the respondent herein for execution of the said decree in the said court which was
marked as Execution Petition No. 234 of 1988. It is not in dispute that the said Execution
Petition had been set down hearing. It was dismissed for default on 1.11.1990. It is also not in
dispute that an application for restoration of the said Execution Petition was filed by the
respondent herein on 4.4.1998 inter alia on the premise that it came to learn about the dismissal
of the said Execution Petition only on 25.3.1998.

Before the learned Trial Court the appellant herein inter alia raised the contention that the
said restoration application was filed beyond the prescribed period of limitation.

The learned Subordinate Judge in terms of his order dated 6th October, 2001 rejected the said
contention. The Revision Petition preferred against the same was dismissed summarily. The
appellant is, thus, before us.

Mr. P. Krishnamoorthy, learned Senior Counsel appearing on behalf of the appellant raised a
short question in support of this appeal contending that in terms of sub-rule (3) of Rule 106 of
Order XXI of the Code of Civil Procedure a restoration application is required to be filed
within 30 days from the date of passing of the order and not thereafter and for the said
purpose Section 5 of the Limitation Act, 1963 is not applicable. It was urged that the Executing
Court could not have, thus, condoned the delay in exercise of its inherent power or otherwise.

Sub-rule (3) of Rule 106 provides for the period of limitation for filing such
an application which reads as under:

"An application under sub-rule (1) shall be made within thirty days from the date of the order,
or where, in the case of an ex-parte order, the notice was not duly served, within thirty days from
the date when the applicant had knowledge of the order."
The learned Executing Court allowed application of restoration filed by the Respondent herein
on the ground that it acquired the knowledge about the dismissal of the Execution Petition only
on 25.3.1998.

The learned Judge, however, while arriving at the said finding failed and/or neglected to consider
the effect of sub-rule (3) of Rule 106. A bare perusal of the aforementioned rule will clearly go
to show that when an application is dismissed for default in terms of Rule 105, the starting
period of limitation for filing of a restoration application would be the date of the order and not
the knowledge thereabout. As the applicant is represented in the proceeding through his
Advocate, his knowledge of the order is presumed. The starting point of limitation being
knowledge about the disposal of the execution petition would arise only in a case where an ex-
parte order was passed and that too without proper notice upon the judgment debtor and not
otherwise. Thus, if an order has been passed dismissing an application for default,
the application for restoration thereof must be filed only within a period of thirty days from the
date of the said order and not thereafter. In that view of the matter, the date when the decree
holder acquired the knowledge of the order of dismissal of the execution petition was, therefore,
wholly irrelevant.

Shiv Kumar vs Darshan Kumar on 12 December, 2008

The appellant, being the landlord of Shop No. WZ-272, Jail Road, Nangal Raya, New Delhi - 46
(hereinafter referred to as "the disputed property") filed an eviction petition before the Rent
Controller, New Delhi, which was decided in favour of the appellant and the Rent Controller, by
the said order, passed an order of eviction against the respondent.

5. Feeling aggrieved, the respondent approached the Additional Rent Control Tribunal, New
Delhi and by an order dated 20th of September, 2004, the Additional Rent Control Tribunal had
set aside the order of the Rent Controller and rejected the eviction petition filed by the appellant.
Against this order of the Additional Rent Control Tribunal, the appellant had approached the
High Court of Delhi by way of a Civil Misc. Main Petition No. 429 of 2005 and the High Court
entertained the said petition and issued notice to the respondent. The aforesaid petition, however,
was dismissed in default on 4th of May, 2006. Accordingly, an application for restoration was
filed by the appellant for the purpose of recalling the aforesaid order of dismissal for default. In
the application for restoration, it was alleged that the appellant had fallen seriously ill and was
admitted to Sir Ganga Ram Hospital, whereby he was advised by the Doctors to take complete
bed rest. By the impugned order, the application for restoration was rejected and feeling
aggrieved, the appellant has come up before this Court by way of Special Leave Petitions, which
on grant of leave, were heard in presence of the learned counsel for the parties.
6. Having heard the learned counsel for the parties and after going through the materials on
record including the statements made in the application for restoration, we are satisfied that
the application for restoration should be allowed subject to payment of Rs.10,000/- to the
respondent in the High Court as costs. Accordingly, the impugned order is set aside and the
original Civil Misc. Petition No.429 of 2005 is restored to its original file subject to payment or
deposit of Rs.10,000/- as costs to the respondent in the High Court within a period of one month
from this date. However, it was brought to our notice by the learned counsel for the
tenant/respondent that subsequent to the rejection of the application for restoration, two other
petitions for restoration were also rejected by the High Court. Therefore, the learned counsel for
the respondent contended that the question of restoration of the Civil Misc. No. 429 of 2005 at
this stage cannot arise as the appellant had failed to challenge the subsequent two orders as noted
hereinabove.

7. Since the appellant has already challenged the first order of rejection of
the restoration application, which is now before us and in the event
this application for restoration is allowed and the Civil Misc. No. 429 of 2005 is restored to its
original file, it is needless to say that the subsequent restoration applications, which were
rejected, are also deemed to have been allowed.

8. Accordingly, the impugned order is set aside and the original Civil Misc. No. 429 of 2005 is
restored to its original file. The High Court is requested to dispose of the case at an early date
preferably within two months from the date of supply of a copy of this order to it. However, we
make it clear that in the event, the appellant fails to deposit or pay the aforesaid amount of
Rs.10,000/- to the respondent as costs in the High Court within one month from this date,
the application for restoration shall stand rejected and these appeals shall stand dismissed and
the order of the High Court shall stand affirmed