Case Note & Summary
The appellant, Shraddha Developers, filed an appeal against an order dated 13.1.2005 passed by the Trial Court dismissing its application for restoration of a suit. The Trial Court dismissed the restoration application solely on the ground that it was filed beyond the period of 30 days and no separate application for condoning the delay had been filed. The appellant contended that the main restoration application itself contained a prayer for condonation of delay (prayer clause (b)), and therefore, no separate application was required. The High Court examined the application and found that indeed prayer clause (b) sought condonation of delay. The Court held that the Trial Court erred in concluding that a separate application was mandatory, relying on the Supreme Court's decision in Devinder Pal Sehgal & anr. v. Partap Steel Rolling Mills Pvt. Ltd., (2002) 3 SCC 156, which held that no separate application is needed if the prayer for condonation is included in the main application. The appellant also submitted that the delay was due to the fault of the advocate, and relied on Ashok Rajvi Vadodriya v. Municipal Corpn. of Gr. Bombay, 2003(3) Mh.L.J. 1003, which held that advocate's fault can be a sufficient cause for condonation. However, the High Court declined to condone the delay itself, stating that it would be necessary for the appellant to prove the cause of delay by leading cogent evidence before the Trial Court. The Court set aside the impugned order and remanded the matter to the Trial Court for fresh consideration of the restoration application on its own merits, including the issue of condonation of delay, after giving both parties an opportunity to be heard.
Headnote
A) Civil Procedure - Restoration of Suit - Condonation of Delay - No Separate Application Required - Code of Civil Procedure, 1908, Order 9 Rule 9, Section 5 of Limitation Act, 1963 - The Trial Court dismissed the restoration application on the ground that no separate application for condonation of delay was filed. The High Court held that since the main application contained a prayer for condonation of delay (prayer clause (b)), there was no need for a separate application. The Court relied on Devinder Pal Sehgal v. Partap Steel Rolling Mills Pvt. Ltd., (2002) 3 SCC 156, which opined that a separate application is unnecessary when the prayer is included. The matter was remanded to the Trial Court for fresh consideration on merits. (Paras 1-5) B) Civil Procedure - Sufficient Cause - Advocate's Fault - Condonation of Delay - Limitation Act, 1963, Section 5 - The appellant argued that the delay was due to the fault of the advocate. The High Court noted that advocate's fault can constitute sufficient cause for condonation, citing Ashok Rajvi Vadodriya v. Municipal Corpn. of Gr. Bombay, 2003(3) Mh.L.J. 1003. However, the Court declined to condone the delay itself and remanded the matter for the appellant to lead evidence on the cause of delay. (Paras 4-5)
Issue of Consideration
Whether the Trial Court erred in dismissing the restoration application solely on the ground that no separate application for condonation of delay was filed, despite the main application containing a prayer for condonation.
Final Decision
The appeal is allowed. The impugned order dated 13.1.2005 is set aside. The matter is remanded to the Trial Court for fresh consideration of the restoration application on its own merits, including the issue of condonation of delay, after giving both parties an opportunity to be heard. The Trial Court is directed to decide the application expeditiously. Civil Application No. 390 of 2005 is disposed of.
Law Points
- Restoration of suit
- condonation of delay
- no need for separate application if prayer included
- advocate's fault as sufficient cause
