1. The appellant being aggrieved by the order dated 8-1-1994 passed in M.J.C. No. 0/94 by the learned IVth Additional Judge to the Court of District Judge, Bilaspur, rejecting the appellant's application filed under Order 9, Rule 7 read with Section 151, C.P.C. for restoration of Civil Suit No. 12-A/92 has preferred this appeal.

2. The brief facts necessary for the disposal of the appeal are that the appellants had filed the Civil Suit which was fixed for hearing on 30-9-1993. It was adjourned to 21-10-1993 and thereafter to 30-10-1993. The appellant submits that on 30-10-1993 their Counsel went to the Reader of the Court and the Counsel was informed that the suit has been adjourned to 10-12-1993 thereafter the Reader informed the appellant's Counsel that the suit was again adjourned to 7-1-1994. The Counsel went to the Reader on 7-1-1994 and was informed that the suit has already been dismissed in default on 30-10-1993. On 7-1-1994 itself the Counsel Shri M. B. Sharma moved an application for restoration of the suit with his own affidavit stating the facts and reasons. The learned Court below without issuing notice of the application to the other side itself examined the maintainability of the suit and by its impugned order came to the conclusion that as a formal application under Section 5 of Limitation Act has not been filed. The application for restoration was formally barred by limitation, holding so, the application for restoration is dismissed. Being aggrieved by the said order the appellants have preferred this appeal.

3. The contention of the learned Counsel for the appellants is that if the Court was of the opinion that the application for restoration was barred by limitation then an opportunity for filing the application under Section 5 of Limitation Act for extension of time and condonation of delay ought to have been given to the appellant. He also submitted that the formal application under Section 5 would not be necessary if the affidavit stating the particular facts required for condonation of delay is already on record. He also submitted that on an oral application delay could be condoned as Section 5 of Limitation Act does not provide for an application. If the Court is satisfied that the appellant or the applicant had sufficient cause for not doing the act within the prescribed limitation was prevented by sufficient cause. The learned Counsel for the respondent on the other hand submitted that the Counsel for the appellant in the lower Court did know that the suit was dismissed on 30-10-1993 and if the application for restoration was to be filed on 7-1-1994 then too an application under Section 5 of Limitation Act was must. In the alternative he submitted that if a formal application under Section 5 of Limitation Act is not required then too the proceedings would show that the request to the Lower Court was never made that the delay deserves to be condoned as the facts were on record which were required for constituting the application. The learned Counsel for the respondent also contended that according to Section 3 of Limitation Act the proceedings must be filed/instituted within the prescribed limitation otherwise those are liable to be dismissed although limitation has not been set up as a defence.

4. Section 5 of Limitation Act provides that an appeal or an application may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Section 5 in fact has been incorporated to save those innocent litigants who either under misapprehension or miscalculation, under bona fide belief or because of the inevitable circumstances could not bring the proceedings before the Court within limitation. It is the power which is given to the Court to condone delay and extend the limitation. It is for the Court to satisfy itself that the sufficient cause exists or not to condone the delay. If the Court on the facts presented before it comes to the conclusion that the delay deserves to be condoned then the Court is duty bound to save the party from unnecessary sufferences and would permit the appellant to go into the arena of their legal rights of the matter after removing the hurdle of 'imitation.

5. The question whether Section 3 of Indian Limitation Act would control and govern the powers given to the Court under Section 5 of Limitation Act would not be of importance. Section 3 merely provides that if the proceedings are not instituted within limitation, the same are liable to be dismissed even if the limitation has not been set up as a defence. But Section 5 gives the powers to the Court to extend the period of limitation if there is a sufficient cause for not drawing the proceedings well within limitation. In fact Section 3 is in nature of proviso to Section 3 and would dilute the rigour of Section 3.

6. In the matter of Gadachandi v. Udi Barik, AIR 1981 Orissa 126, the question of a formal application was raised and the Court holding that the trial Court of that case was not justified in rejecting the application for substitution of the legal representative as barred by limitation merely because a formal application under Section 5 of Limitation Act was not filed. The High Court was also of the opinion that the trial Court could not have refused to consider the question of condonation of delay merely on the ground of absence of the formal application. The ratio of the case simply is that if the facts necessary for condonation of delay are available the Court must exercise its powers irrespective of the fact that formal application under Section 5 of Limitation Act was not on record.

7. In the matter of Mst. Ramkali v. Indra Deo, AIR 1985 Pat 148, an appeal before the High Court was filed beyond the period of limitation. The High Court was of the opinion that when an appeal is filed beyond limitation in explainable circumstances without a formal or written application for excusing the delay in presenting the appeal, the Court should afford opportunity to the appellant to file an application for condonation of the delay. This judgment also states that an appeal which is filed beyond limitation cannot be dismissed on the ground of limitation without affording an opportunity to the appellant who is entitled to explain the delay. It further says that if the delay is explainable then the Court has to exercise its powers.

8. In the matter of Markland Pvt. Ltd. v. The State of Gujarat, AIR 1989 Guj 44, the High Court was of the opinion that if an application is not filed within limitation and which patently appears to be barred by limitation then too in absence of the formal application for condonation of delay the Court has powers to condone the delay. According to this judgment also Section 5 of Limitation Act does not say that there should be an application for condonation of delay.

9. I am also of the opinion that for condonation of delay under Section 5 of Limitation Act a formal application would not be required if the facts presented before the Court satisfies the judicial conscience of the Court that the applicant before it was prevented for sufficient cause in bringing the proceedings well within limitation. If the Court is of the opinion that in absence of formal application the delay cannot be condoned then it is always the duty of the Court to give an opportunity to the applicant before it to move an application explaining the cause for delay and seek condonation under Section 5 of Limitation Act. The applicant must get proper opportunity to explain the circumstances which prevented it from drawing proceedings well within limitation. In the instant case the facts required for condonation of delay were already on record. The Counsel who filed his affidavit clearly stated that on 30-10-1993 he was informed that the suit was adjourned to 10-12-1993 and again to 7-1-1994 only on 7-1-1994 he was informed that the suit stood written off in default from the record on 30-10-1993. The affidavit of the Counsel further states that about the dismissal on 30-10-1993 he came to learn for the first time on 7-1-1994. Whether this was a true factual position or not is still to be investigated. The Court in its hot haste without appreciating the affidavit has rejected the application only on the ground that it was barred by limitation. The Order dated 8-1-1994 even does not show that after the Court held that application was barred by limitation any opportunity was given to the appellant to move an application under Section 5 of Limitation Act. I have already held that it is always the duty of the Court to give an opportunity to the applicant but in the instant case the order is conspicuously silent about the grant of the said opportunity. A party if cannot be taken by surprise by the other side then the Court should also not take the party by surprise. After hearing the appellant if the Court was of the opinion that a formal, duly constituted, application under Section 5 of Limitation Act ought to have been filed, then irrespective of the legal position that a formal application is not required, the Court should have granted an opportunity to the appellant to explain the delay and satisfy the Court that the delay deserves to be condoned. In the instant case the Court below has taken too technical a view by holding that the suit was dismissed on 30-10-1993 and the application for restoration was filed on 7-1-1994 therefore, the application for restoration was patently barred by limitation. The order is patently illegal. It deserves to be and is hereby set aside.

10. The appeal is allowed. The matter is remanded back to the Lower Court for registration of the matter at its original number and to grant an opportunity to the appellant to file an application under Section 5 of Limitation Act. The parties shall appear before the trial Court on 22-1-1996. The Registry is directed to remit the records immediately along with a copy of this order so as to reach that Court before the date fixed for appearance of parties.