Smt. Nilima Chatterjee And Others v. Sanyashi Paul

Soumen Sen, J.:— This revisional application is directed against an order dated 4th March, 2015 passed by the learned Additional District Judge, 6 Court, Alipore in connection with an application filed by the plaintiffs/petitioner under Order IX Rule 4 of the Code of Civil Procedure for restoration of Title Suit No. 96 of 2002 along with an application under Section 5 of the Limitation Act.

2. The plaintiffs/petitioners filed Title Suit on 8 February, 1989. The defendant/opposite party filed his written statement on 31st December, 1989. Thereafter, till about 2006, the said suit was heard and the said suit could not be disposed of in view of preoccupation of the Court below and at times due to non-availability of the parties. On 13 July, 2006, the Trial Court fixed the plaintiffs' evidence as last chance for 18 August, 2006. On 18 August, 2006 the plaintiffs prayed for time on health ground and the said prayer was rejected and the plaintiffs were directed to show cause as to why the said suit should not be dismissed. The Trial Court accepted the cause shown and the matter was fixed on 11 September, 2006 for peremptory hearing and it appears that on 13 November, 2006, 19 December, 2006 and 17 January, 2007 the case was fixed for peremptory hearing. On 14 February, 2007 the plaintiffs/petitioners did not appear despite repeated calls. Since the suit was pending from 1989 and was on the peremptory board for long time and as the plaintiffs did not appear on earlier dates, the suit was dismissed on 14 February, 2007. Thereafter an application under Order IX Rule 4 of the Code along with the application under Section 5 of the Limitation Act was filed on 27 July, 2007.

3. There cannot be any doubt that the said application was barred by limitation but in my view, it was not too late for which the plaintiffs should not be given a chance to adduce evidence. Moreover, it appears that the plaintiff no. 1 is an old lady of 78 years and due to her illness she cannot take steps and the other plaintiffs, who are the daughters, were pre-occupied with the treatment of their mother i.e plaintiff no. 1.

4. The Trial Court has relied upon various judgments of the Hon'ble Supreme Court and held that delay for more than four months applying for setting aside the order of dismissal has remained unexplained and, as such, the petitioners would not be entitled to prayer for condonation of delay and restoration of the suit.

5. There cannot be any doubt that at times the plaintiffs were responsible for the delay in disposal of the suit but the plaintiffs does not appear solely responsible for such delay because at times the defendant took time and the Court below was also unable to take up the hearing of the suit as the business of the Court did not permit.

6. When the trial has already commenced, in my view, the opportunity should have been given to the plaintiffs/petitioners to proceed with the suit after restoration.

7. In view of the aforesaid, the impugned order is set aside.

8. The Trial Court may fix consecutive dates for evidence of the parties and if on the dates any of the parties fail to appear and adduce evidence, the Trial Court may close the evidence and proceed with the matter in accordance with law.

9. The Trial Court shall pass peremptory directions and shall make all endeavour to dispose of the said suit as expeditiously as possible without granting any adjournment to either of the parties and preferably within a period of one year from the date of communication of this order. The revisional application is, accordingly, succeeds.

10. However, there shall be no order as to costs.