Case Note & Summary
The appellants, Devkisan Onkardas Bhutada and Gopal Devkisan Bhutada, had filed Regular Civil Appeal No. 80/08 against the judgment and decree in Regular Civil Suit No. 106/2001, which was a suit for recovery of rent and mesne profits. On 08/10/2012, the appeal was dismissed in default because the appellants and their counsel were absent and no adjournment application was moved. The appellants filed an application for restoration (M.J.C. No. 77/12), which was rejected by the District Judge-I, Khamgaon on 22/07/2013. The present appeal (Appeal Against Order No. 62 of 2014) was preferred against that rejection order. The appellants' counsel argued that it is a cardinal principle that parties should not suffer for the mistake of their advocate, and that Section 5 of the Limitation Act aims to advance substantial justice. He submitted that the District Judge's approach was too technical, causing miscarriage of justice, and offered to pay costs. The respondent's counsel contended that the appellants had been negligent over a long period, as evidenced by the roznama, and that no case was made out for interference. The High Court, after hearing both sides, found that the District Judge's order was too technical and that the appeal should be restored to be heard on merits. However, considering the inconvenience caused to the respondent, the court imposed costs of Rs. 5,000/- payable by the appellants to the respondent within four weeks. The appeal was allowed, the impugned order was set aside, and the restoration application was allowed subject to the costs condition.
Headnote
A) Civil Procedure - Restoration of Appeal - Dismissal in Default - Mistake of Advocate - The appellants' appeal was dismissed in default due to absence of their advocate. The District Judge refused restoration. The High Court held that for the mistake of the advocate, parties should not suffer, and the purpose of Section 5 of the Limitation Act is to advance substantial justice. The court allowed restoration subject to costs of Rs. 5,000/- payable to the respondent. (Paras 5-8) B) Limitation Act - Section 5 - Substantial Justice - The principle that matters should be heard on merits rather than thrown out on technical grounds was applied. The court emphasized that the approach of the District Judge was too technical, resulting in miscarriage of justice. (Paras 5-7)
Issue of Consideration
Whether the appeal dismissed in default due to absence of appellants and their advocate should be restored, and whether the District Judge's refusal to restore was justified.
Final Decision
Appeal allowed. Impugned order dated 22/07/2013 set aside. Restoration application (M.J.C. No. 77/12) allowed subject to payment of costs of Rs. 5,000/- by appellants to respondent within four weeks. Regular Civil Appeal No. 80/08 to be restored to file and heard on merits.
Law Points
- Mistake of advocate should not prejudice party
- Section 5 Limitation Act advances substantial justice
- Matters should be heard on merits rather than technicalities
- Costs can be imposed to compensate inconvenience
