1. Suit for declaration with consequential relief of permanent prohibitory injunction, titled, „Charan Dass v. Chander Shekhar Gupta and ors.‟ filed
by plaintiff, Charan Dass, the predecessor-in-interest of herein respondents, against the petitioners was dismissed in default by the trial court on
25.09.2004 as none of the parties appeared before the court on that day.Â
2. On 11.01.2005 plaintiff filed a composite application before the trial court headed as “RESTORATION APPLICATION"" and ""Application
Under Section 5 of the Limitation Act for Condonation of Delay†seeking restoration of his suit after condoning the delay. The prayer part in this
application is reproduced as it is important for disposal of this petition.
“It is, therefore, prayed that in view of the above facts and circumstances and others to be urged during the course of hearing the delay, if any, be
condoned in the interest of justice, equity and fairplay. The application be accepted and after condoning the delay and restoration of the suit, the suit be
proceeded further for expeditious disposal on merits.â€
3. Defendants filed objections to this application. Learned trial court after hearing both the sides by its order dated 04.11.2006 dismissed the
application for condoning delay taking the view that the delay of more than 3½ months is beyond acceptable range and that the plaintiff was obliged
to file the application within prescribed period of limitation which is 30 days under Article 163 of the Limitation Act, 1995 and consequently dismissed
also the application for restoration of the suit.Â
4. Plaintiff challenged the order dated 04.11.2006 passed by the learned trial court in a Civil Miscellaneous Appeal before the District Judge, Reasi.
Learned District Judge by his judgment dated 18.03.2009 allowed the appeal, set aside the order dated 04.11.2006 passed by the learned trial court
and ordered restoration of the suit filed by the plaintiff subject to payment of Rs.5000/ as costs by the plaintiff.
Hence, this revision petition.
5. Petitioners/defendants have challenged the order dated 18.03.2009 passed by the learned District Judge, Reasi.
6. Heard learned counsel for the parties and perused the record.Â
7. In allowing the appeal, learned appellate court after hearing both sides took the view inter alia that the plaintiff (therein appellant) was late in
filing the appeal but negligence in action or lack of bona fide cannot be attributed to him and taking hyper technical view in such a situation may
hamper the cause of justice and declining condonation of delay would mean placing a clog on the rights of the plaintiff to contest a matter concerning
his civil rights and in the final analysis, he would be out of court and that in fact would suffice to condone the delay.
8. Petitioners (defendants) have challenged the impugned order dated 18.03.2009 primarily on the ground that the same has been passed by the
learned District Judge without jurisdiction as the Code of Civil Procedure (for short, the Code) does not provide for an appeal against an order refusing
condonation of delay under Section 5 of the Limitation Act and the only remedy available to the aggrieved party against such an order is to file a
revision before the High Court. Besides, the order is challenged on merits and it is contended that no case for condoning the delay was made out.
Contextually, it is contended also that the learned District Judge has fallen in error by not taking up the question of delay alone but also the application
for restoration of the suit, which was required to be disposed of by the trial Court.Â
9. Mr. Ajay Sharma, learned counsel appearing on behalf of the petitioners/defendants, argued that under the Code, besides final decree of a court,
appeal lies against those orders only, which are specified in Section 104 and Order XLIII thereof. The order dated 04.11.2006 was passed by the
learned trial court primarily under Section 5 of the Limitation Act, whereas dismissal of the application for restoration of the suit was incidental order.
An order under Section 5 of the Limitation Act is not appealable either under Section 104 of the Code or Order XLIII and not even under the
Limitation Act. The only remedy available to the plaintiff was to file a revision petition in this Court. No appeal against the said order could have been
filed and the learned District Judge entertained and allowed the appeal without any jurisdiction. Learned counsel, thus, concluded that any order
passed by a court without jurisdiction is nullity and liable to be set aside by this court. In support, learned counsel cited a decision of this Court in
Showkat Ahmad Bhat v. Centre of Electronics and others, 2006 (II) SLJ 842, Full Bench decision of Calcutta High Court in Mamuda Khateen and ors
v. Beniyan Bibi and ors, AIR 1976 Cal 415 and DB decision dated24.07.2008 of Allahabad High Court in Shiv Saran Lal Gupta and anr. V. Smt. Usha
Kiran Gupta and ors. F.A.F.O. No. 2171 of 2007.
10. In reply, Mr. S. C. Mansotra, learned counsel appearing on behalf of the respondents, cited an earlier decision of this Court in Union of India
v.     Nek Ram Sharma, 2004 (1) JKJ 280 and submitted that an order refusing condonation of delay under Section 5 of the Limitation Act
and consequential dismissal of the application for which condonation is sought is appealable. Learned counsel argued that consequent upon rejection of
plaintiff's prayer for condonation of delay under Section 5 of the Limitation Act, the trial court dismissed the application for restoration of the suit
under Order IX, Rule 9 of the Code so appeal was maintainable as order passed under Rule 9 is an appealable order so the objection to the jurisdiction
of District Judge, Reasi cannot sustain.
11. Limitation Act deals with and provides for a period of limitation for filing suits, appeals and certain applications to the courts. Section 3 of the
Limitation Act lays down a general principle that “every suit instituted, appeal preferred and application made, after the period of limitationâ€
prescribed by the first schedule in the Limitation Act “shall be dismissed, although limitation has not been set up as a defenceâ€. Section 5 of the
Limitation Act, however, provides for extension of the period of limitation in certain cases which in common parlance is called as „condonation of
delay‟. Condonation of delay can be sought for filing of time barred appeals and certain applications. Section 5, short of its explanation is reproduced:
“5. Extension of period of limitation.â€" An appeal or an application for review of a judgment or for leave to appeal or an application to set aside an
order of dismissal of a suit for plaintiff‟s default or an application to set aside a decree passed ex-parte in an original suit or appeal or an application to
bring the heirs of a deceased party on the record or an application to set aside an order of abatement of a suit or appeal or any other application to
which this section may be made applicable by or under an enactment for the time being in force may be admitted after the period of limitation
prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the
application within such period.â€
12. In order to seek condonation of delay in filing an appeal or an application, say an application for restoration of a suit, beyond time, the appellant
or the applicant, as the case may be, is required to file an application under section 5 of the Limitation Act along with the appeal or the applicatioN. In
this case, it may be restated precisely, the plaintiff had filed the application with composite prayer for restoration of the suit and condonation of delay
under section 5 of the limitation Act. By virtue of the Order dated 04.11.2006 learned trial court primarily rejected the prayer for condonation of delay
under Section 5 of the Limitation Act and consequent thereto the prayer for restoration was also dismissed as time barred.Â
13. It is not disputed that the list of appealable orders given in Section 104 and Order XLIII of the Code does not include an order passed under
section 5 of the Limitation Act and no provision for appeal against such an order is provided under the Limitation Act too. Important question arising
for consideration, however, is; whether an order refusing condonation of delay under section 5 of the Limitation Act for filing an appeal or application
and consequently dismissing the said appeal or application as time barred is purely an order under section 5 of the Limitation Act or an order in the
appeal or the application?
14. In Nek Ram Sharma’s case cited by the learned counsel for the respondents, the application under Section 5 of the Limitation Act for
condonation of delay in filing an application under Order IX Rule 13 of the Code for setting aside ex-parte judgment and decree was dismissed by the
trial court (1st Addl. District Judge, Jammu)and consequently the application under Order IX Rule 13 was also dismissed as time barred. The order
passed by the trial court was challenged in appeal before this Court. The question of maintainability of appeal against such an order was similarly
raised before this Court. A learned Single Bench of this Court, while interpreting Sections 3 & 5 of the Limitation Act in juxtaposition    and
relying upon two Supreme Court decisions in     Essar Constructions v. N.P.Rama Krishna Reddy, (2000) 6 SCC 94 and Union of India and
ors. v. Manager, M/s Jain and Associates, (2001) 3 SCC 277, held as under:
“11. After considering the ratio of the judgments referred to above, I am of the opinion that an order rejecting the application under Section 5 of the
Limitation Act or for that matter condonation under any other law merges with the order that may be ultimately passed in application or the appeal.
The consequence of dismissal of condonation application is rejection of an application or the appeal as the case may be. Therefore, the out-come of
such rejection is up-holding an order subject matter of appeal or the application. In the present case, rejection of application for condonation of delay
has culminated into rejection of application under Order 9 Rule 13 CPC. Admittedly, an order rejecting application under Order 9 Rule 12 CPC is
appealable under Order 43 (d). Thus, I am of the considered opinion that the order under appeal is appealable under Order 43 (d) Code of Civil
Procedure. The appeal is, accordingly, admitted to hearing.â€
15. Similar question has been considered by a learned three-Judge Bench of the Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal and ors,
(2005) 1 SCC 436. In that case the appellant (first defendant) was set ex parte by the trial court and the suit was decreed ex parte. The appellant filed
an application for setting aside of the ex parte decree under Order IX Rule 13 of the Code accompanied by an application under Section 5 of the
Limitation Act for condoning the delay in filing the petition for setting aside the exparte decree. Shortly after filing these two applications, appellant
also filed an appeal against ex parte decree along with an application for condoning the delay in filing the appeal as enjoined by Order XLI Rule 3-A of
the Code read with Section 5 of the Limitation Act. The appeal against the ex parte decree and application for condoning the delay in filing the appeal
filed by the appellant were both dismissed in default by the appellate court as appellant (first defendant) did not appear. The question taken up by the
learned Bench was “whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eyes of law,
when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time barred by
limitation, in view of section 3 of the Limitation Act.†Supreme Court, while surveying the authorities on the point inter alia referred with approval to
an earlier decision of the Court in Mela Ram and Sons v. CIT, AIR 1956 SC 367 where it has been held “that an appeal presented out of time is an
appeal and an order dismissing it as time barred is one past in an appeal†and relied upon a learned four-judge decision of the Court in Sheodan Singh
v Dayyao Kunwar AIR 1966 SC 1332 where it has been held:
We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is
dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial
court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
The ratio of decision in Shyam Sunder Sarma is that an appeal when dismissed on refusal to condone delay is nevertheless a decision in the appeal.
16. The decision of this Court in Showkat Ahmad Bhat’s Case (supra) cited on behalf of the petitioners is not applicable in context of the question
under consideration in this case. Even though in the Head Note of the reporting of the judgment, it has been mentioned that “order dismissing an
application for condonation restoration application is revisable but not appealable†the same neither was the question taken up nor is stated so in the
body of the judgment. In that case, learned Single Bench of this Court has rather held that the order impugned in the revision therein was one under
Order IX Rule 4 of the Code, which is not appealable and not one under Order IX Rule 9, so the revision was maintainable.Â
17. In Mamuda Khateen’s case (supra) cited on behalf of the petitioners, learned Full Bench of the Calcutta High Court has held indeed that an
order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of the delay
in filing the appeal is not a decree but an order against which an application in revision under Section 115 of the Code may lie but no appeal under
Order 43, Rule 1 of the Code can be preferred. The Full Bench decision of the Calcutta High Court has been followed by the learned Division Bench
of Allahabad High Court in Shiv Saran Lal Gupta’s case (supra) cited on behalf of the petitioners too. The Full Bench decision of Calcutta High
Court, however, has been overruled by the Supreme Court in Shyam Sunder Sarma'a case (supra) holding that ""since the ratio of that decision runs
counter to the principle laid down by this Court in Messrs Mela Ram and Sons (supra), obviously the same could not be accepted as laying down a
correct law"".
18. Legal position is clear too. An appeal or application shall be defeated as time barred if it is filed beyond the prescribed period of limitation and
condonation of delay is not allowed by the court. In that case the decree or the order against which appeal or the application is sought to be filed
shall attain finality. An order refusing condonation of delay under section 5 of the Limitation Act and consequently dismissing the time barred appeal or
the application, for filing whereof condonation has been sought, is in effect an order passed in the said appeal or the application and not an order under
section 5 of the Limitation Act in isolation. For the purpose of assailing such an order before higher court/forum, the order shall be construed as one
dismissing the appeal or the application and not as an order dismissing the application under section 5 of the Limitation Act alone.
19. Legal position having been stated as above, the order dated 04.11.2006 passed by the learned trial court, whereby the application for condonation
of delay was dismissed and consequently the application for restoration of the suit was dismissed, is an order passed in the application for restoration
of the suit and not an order under section 5 of the Limitation Act.
20. The other ground of challenge to the impugned order passed by the learned District Judge, Reasi is that no case for condoning the delay was made
out. Contextually, it is contended also that the learned District Judge has fallen in error by not taking up the question of delay alone but also the
application for restoration of the suit. Argument of the learned counsel for the petitioners was that even if learned District Judge was persuaded to set
aside the order dated 04.11.2006 passed by the learned trial court, the matter should have been remanded back to the trial court for deciding the
application for restoration of suit and the District Judge ought not to have passed order for restoration of the suit himself. Contra argument of learned
counsel for the respondents was that the learned trial court by its order dated 04.11.2006 did not deal with the question of condoning the delay alone,
but also with the question relating to non representation on behalf of the plaintiff when the suit was dismissed in default on 25.09.2004 and since a
composite order was passed so entire order was liable to be set aside and suit to be restored.
21. Circumstances leading to the dismissal of the suit in default by the trial court on 25.09.2004 have been noticed. Plaintiff at an earlier stage had
approached this Court in Revision Petition No. 115/2003 against order dated 15. 04. 2003 passed by the learned trial court whereby defendants‟
application for recasting of issues and permission to place on record the additional documents was allowed. This Court dismissed the revision petition
by the order dated 20.08.2004 and while remitting back the record of the trial court, directed the parties through their counsel to put their appearance
before the trial court on 14.09.2004. None of the parties, however, put their appearance before the trial court on 14.09.2004 and the trial court
adjourned the case to 25.09.2004 awaiting the parties. None appeared on 25.09.2004 too and the learned trial court dismissed the suit for non-
prosecution by the plaintiff.
22. As stated hereinabove, the plaintiff had filed a composite application for restoration of the suit and condonation of delay in seeking the restoration.
On reading the said application, it is clear that the condonation of delay and restoration were sought on the same ground that the plaintiff did not have
the timely information about the order/judgment dated 20.08.2004 passed by this Court, whereby Revision Petition No. 115/2003 (supra) was disposed
of and parties through their counsel were directed to appear before the trial court on 14.09.2004. It is contended in this behalf that arguments in that
revision petition were heard on 06.08.2004 and order/judgment was reserved. The order/judgment was announced on 20.08.2004, however, without
notice to the plaintiff (petitioner therein) or his counsel nor the case was listed in the regular cause list. The plaintiff, who is an aged person living in
remote village of Tehsil, Reasi enquired into the matter from the Registry of this Court on 22. 12. 2004 when he was informed that revision petition
was disposed of on 20.08.2004. He then approached his counsel in the trial court and on 03. 01. 2005 on enquiry from the concerned clerk of the trial
court he came to know that his suit has been dismissed in default on 25.09.2004. He then immediately applied for certified copy of the order so the
application for condonation of delay and restoration of suit was filed within time from the date of knowledge of the dismissal of the suit.Â
23. It cannot be denied that condonation of delay and restoration of the suit primarily were sought on the same ground as same cause was attributed to
plaintiffs‟ failure to appear before the trial court when suit was dismissed in default and to his failure to file application for restoration of the suit within
30 days after dismissal of the suit. The plea taken by the plaintiff was addressed by the learned trial court, while dismissing the prayer for condonation
of delay. Had the view taken by the learned trial court been favourable to the plaintiff both the relief sought by him, that is condonation of delay and
restoration of the suit, were liable to be allowed together and there was no necessity of deferring the adjudication in the prayer for restoration of the
suit after allowing the prayer for condonation of delay. The plea of the plaintiff having found the favour of the appellate court, learned appellate
court cannot be said to have committed any error in allowing the prayer for restoration of the suit along with allowing the prayer for condonation of
delay and ordering the restoration of the suit.Â
24. Besides above two grounds, it was submitted by the learned counsel for the petitioner, though not pleaded in the petition, that the order dated
25.09.2004 whereby suit was dismissed in default by the trial court was one under Order IX, Rule 3 of the Code as neither of the parties to the suit
were present before the court on that day so restoration application was covered under Rule 4. It was argued by the learned counsel for the
petitioners that an order passed under Order IX Rule 4 is not appealable order so even if it is held that the order dated 04.11.2006, whereby
condonation of delay was refused and application for restoration of suit was dismissed was an order passed in the application for restoration, the said
order being one under Rule 4, was not appealable order and the learned District Judge had entertained and decided the appeal without jurisdiction.
25. It cannot be denied that when neither of the parties to a suit appears before the court, the dismissal of the suit, if ordered by the court, falls under
Order IX Rule 3 of the Code and its restoration is governed by Rule 4 and also that an order passed in an application filed under Rule 4 is not
appealable order. However, this legal position cannot improve the petitioners' position in this case for the reason that the order dated 04.11.2006 shows
clearly that the trial court had treated plaintiff's application for restoration of the suit as one under Order IX Rule 9 so the order is to be construed as
one passed under Rule 9 and not under Rule 4.
26. An order passed under Order IX Rule 9 of the Code is appealable under Order XLIII (c). The order dated 04.11.2006 passed by the learned trial
court under Rule 9 was accepted by the petitioners (therein respondents) and was rightly assailed by the plaintiff in appeal before the District Judge.
The order having been passed under Rule 9, learned District Judge cannot be said to have committed any illegality or error in entertaining and deciding
the appeal. The impugned order dated 18.03.2009, therefore, cannot be said to have been passed by the learned District Judge without jurisdiction.
27. The only issue, which survives for consideration, however, is whether learned trial court was justified in refusing the condonation of delay and
thereby dismissing the application for restoration of the suit and learned appellate court has fallen in error in allowing the appeal against the order
passed by the trial court.Â
28. The reasoning recorded and view taken by the learned trial court in the order dated 04.11.2006 has been noticed. The fact that revision petition
No. 115/2003 was not listed in the regular cause list and was listed in the supplementary cause list on 20.08.2004 was accepted. Learned trial court,
however, observed that it is a matter of common knowledge that supplementary cause list is placed on the notice board of the High Court as a notice
to general public and the advocates and took the view that it does not lie in mouth of the plaintiff to say that his counsel did not have knowledge
regarding listing of the case. In view of the order dated 20.08.2004 passed by this Court, learned trial court observed that ostensibly the order was
announced in presence of respective counsel, that is, M/s K. K. Pangotra and S. C. Gupta for the plaintiff, therein petitioner and Mr. Virender Bhat
for defendants, therein respondents, and took the view that there was no room to doubt that parties through their counsel were directed to cause their
appearance before the trial court on 14.09.2004 and that the term “through their counsel†amply demonstrated presence of respective counsel
before the court at the time the order was announced. Learned trial court, thus, held that order dated 20.08.2004 passed in revision petition No.
115/2003 was announced by this Court in presence of respective counsel for the parties and the counsel for the plaintiff had acquired knowledge on
the same very day so the plaintiff having failed to appear before the trial court on 14.09.2004 and even on the next date thereafter on 25.09.2004, he
was obliged to file the application within 30 days from the date of dismissal of the suit.Â
29. On a plain look and a simple consideration of the order passed by the learned trial court, I cannot but say that too hyper technical view was taken
by the learned trial court in blaming the plaintiff for his failure to appear or cause representation on his behalf before the trial court on 14.09.2004 and
on the subsequent hearing on 25.09.2004. Correct it is that supplementary cause list is displayed on the notice board of this Court for information of
all the concerned, in particular parties and their counsel about listing of a particular case before a Bench on the date mentioned therein, but notification
of the cause list cannot guarantee the representation on behalf of a party before the court. In a case in which judgment/order is reserved by this Court,
the existence of the names of the counsel for the parties in the judgment/order does not certify their actual presence before the court when the
judgment/order was announced and cannot rule out the possibility of none or one of them not being present in the court at that time. Harsh
consequences for failure of a party to cause his appearance before the lower court in accordance with the direction issued by this Court, while
disposing of appeal or revision, therefore, are not justified. It is important to note against the application for condonation of delay and restoration of the
suit, the clear stand taken by the respondents (defendants) was that the counsel for the plaintiff were present before this Court when the order in
revision petition No. 115/2003 was announced on 20.08.2004, which in turn would show that the counsel for the defendants, therein respondents, or
anyone of the defendants was also present before the Court. If it was so, why there was no representation on behalf of the defendants before the trial
court on 14.09.2004 or 25.09.2004 has not been explained. Non representation on behalf of defendants too before the trial court on these two dates is
indicative of the fact that even they were not aware of the announcement of order dated 20.08.2004 by this Court and the direction for appearing
before the trial court.Â
30. It has been noticed and it is worthwhile to point out that in the order dated 04.11.2006 learned trial judge at one stage had visualized the necessity
of assuming that counsel for plaintiff (applicant in condonation/restoration application) had not seen the supplementary cause list. This assumption as
recorded in the said order is culled out:
“Assuming for a movement that L/C for the applicant could not have a look on the supplementary cause list on the relevant date.â€Â
31. The assumption so drawn, however, was not addressed by the learned trial judge in further part of the order inasmuch as, ignoring this assumption,
learned trial judge recording a finding that order dated 20.08.2004 was announced by the High Court in presence of respective counsel.
32. The purpose of issuing a direction by the High Court to the parties to appear before the court below on a particular date is to facilitate the
representation on behalf of the parties before the court below and is not intended to take a stringent action like dismissal of the suit on account of
failure in this regard. Learned judge of the trial court would have been said to have acted with more prudence had the court issued notice to the
parties about return of the record of the case in the trial court and for their appearance before the court. Such a notice at least should have been
issued to the counsel of the parties.
33. I would, thus, hold that learned trial court was not justified in rejecting the prayer for condonation of delay or the prayer for restoration of the suit.
Correct approach, however, was adopted by the learned District Judge who acted with more prudence and wisdom based on legal principles in
allowing the appeal, setting aside the order passed by the trial court and restoring the suit to hearing. The contention that order passed by the learned
District Judge was without jurisdiction has been rejected hereinabove and I find no other reason to interfere with the impugned order.Â
34. Viewed thus, this revision fails and therefore, is dismissed.
Record of the courts be remitted back along with a copy each of this order. Trial Court shall issue notice to the parties and proceed with the trial of
the case expeditiously.
