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industrial Minerals and Mill Stores Traders Vs. K.M. Chemicals and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 54 of 1978
Judge
Reported inAIR1983Cal215
ActsLimitation Act, 1963 - Section 5; ;Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 9
Appellantindustrial Minerals and Mill Stores Traders
RespondentK.M. Chemicals and anr.
DispositionAppeal allowed
Excerpt:
- .....calcutta and by reason of the said ailments, his vision and eyesight had been failing from time to time. as a result thereof he was compelled to be irregular in attending his office since june, 1976. he has further stated that he had severe attack in his eyes in the middle of july, 1976 and lost his vision and could not come to his office. the suit herein appeared in the peremptory undefended list before basu, j. on august 2, 1976 and was dismissed for non-prosecution. it is also stated that the suit did not appear in the peremptory list pursuant to any letterc being written or any requisition being put in on behalf of mr. satyen basu, the recorded advocate for the plaintiff. it appears that the department put the same in the peremptory list without giving any prior intimation.....
Judgment:

Ramendra Mohan Datta, J.

1. This appeal arises out of an order of dismissal of an application made under Section 5 of the Limitation Act for condonation of delay and for setting aside the order of dismissal of the undefended suit when it appeared in the list of undefended suits.

2. The order of dismissal was passed by Ajay Kumar Basu, J. on August 24, 1977 without delivering any judgment or indicating any reason for such exercise of discretion in dismissing the application. We have repeatedly observed that in matters like this, when the Court exercises its discretion in allowing or dismissing or making no order on the application, the Court should be pleased to give its reasons so that the appeal Court would be in a position to appreciate whether or not the discretion was judicially exercised in the facts and circumstances of the case. Moreover, the provisions of Order 9, Rule 9 of the Civil P. C. provide, inter alia, that if the plaintiff in his application for set-ting aside the dismissal of the suit could satisfy the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, it was imperative upon the Court to make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. In our opinion, that would require the Court to give its rinding as to whether or not sufficient cause for non-appearance was made out. In case the Court makes a finding that such sufficient cause has not been made out, then only the Court would be in a position to dismiss such an application but until that finding is arrived at and if on the contrary there was sufficient cause for non-appearance, the Court would be bound to make an order setting aside the dismissal. In such circumstances there is no question of exercising any option or discretion in the matter. That being the position, in our opinion, the learned Judge of the Court below could not have passed such an order without giving its finding as to whether or not it was satisfied that there was sufficient cause for non-appearance when the suit was called on for hearing.

3. We, accordingly, think that the appeal Court under the circumstances ought to go into the merits of the application and find out whether the discretion has been judicially exercised or not.

4. This is a case where Mr. Satyen Basu, the then Solicitor and Recorded Advocate of the plaintiff, himself made an affidavit, wherein he stated that since 1st March, 1976 he had been suffering from acute optic atropi and had been under the continuous treatment of Dr. Shyamal Sen, Head of the Department of Neurology of the Calcutta Medical College, Calcutta and by reason of the said ailments, his vision and eyesight had been failing from time to time. As a result thereof he was compelled to be irregular in attending his office since June, 1976. He has further stated that he had severe attack in his eyes in the middle of July, 1976 and lost his vision and could not come to his office. The suit herein appeared in the peremptory undefended list before Basu, J. on August 2, 1976 and was dismissed for non-prosecution. It is also stated that the suit did not appear in the peremptory list pursuant to any letterc being written or any requisition being put in on behalf of Mr. Satyen Basu, the Recorded Advocate for the plaintiff. It appears that the department put the same in the peremptory list without giving any prior intimation about the appearance of the suit in the peremptory list. In any event because of his absence from office and from his work during the said period, he could not be present in Court or could inform his client, the plaintiff herein, about the hearing of the suit when it appeared in the undefended list. Mr. Sen has also stated in his affidavit that since the latter part of July, 1976 by reason of his ailments he had been absenting himself from attending the office and did not have any opportunity to check up the records or to take any further steps with regard to the above suit. Since the latter part of July, 1976 his eyesight was failing altogether from time to time. In June, 1977 he was afflicted with total lack of vision and it was only some time in August, 1977 that his vision came back just sufficient for him to attend his office on 8th August, 1977.

5. On 10th August, 1977 a partner of the plaintiff attended his office on hearing that Sri Basu attended the office. On enquiry, the learned Advocate ascertained that the suit had been dismissed as aforesaid. He has stated in his affidavit that it was due to his illness and in the facts and circumstances, as stated by him in his affidavit, he was unable to notice that the suit had appeared in the peremptory list and as a result of such bona fide oversight and mistake on his part, the dismissal of the suit took place and he prayed that the foregoing facts be taken into consideration by this Court in making necessary orders as prayed for in the petition. The defendant did not appear in the said application. In our opinion, the application was no doubt made after long lapse of time since the date of dismissal of the suit, still the grounds as made out in the petition under Section 5 of the Limitation Act and under the provisions of Order 9, Rule 9 were such that the same should have been taken into consideration, in the facts and circumstances of this case, by the Court in arriving at its satisfaction that sufficient grounds for non-appearance of the plaintiff, at the time when the suit was called on for hearing, was made out. In fact, some time after the said affidavit, Mr. Satyen Basu died, inter alia, on account of the same ailments. In any event, the grounds as made out in the petition should be considered as sufficient to make an order restoring the suit and setting aside the order of dismissal of the suit.

6. Accordingly, for the reasons as aforesaid, we allow the appeal and set aside the order of the Court below, by making an order condoning the delay in terms of prayer (a) and also by making an order in terms of prayer (b). In the facts and circumstances of this case, however, there will be no order as to costs.

7. Let the matter be mentioned before the appropriate Court for hearing of the suit forthwith.

C. K. Banerh, J.

8. I agree.


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