Hari Singh and another vs Smt. Ambo and another

J.V. Gupta, J.—This revision petition is directed against the order of the Additional District Judge, Amritsar, dated August 28, 1986, whereby the order of the trial Court rejecting the application for the restoration of the suit dismissed for default of appearance on September 29, 1982, was maintained

The Plaintiffs filed the suit for the grant of the declaration to the effect that they were the owners in possession of the land measuring 136 kanals 1 marla, with consequential relief to grant the injunction restraining the Defendants from interfering with their possession. September 29, 1982, was the date fixed for the evidence of the Plaintiffs Since many opportunities had been afforded to the Plaintiffs in this behalf earlier, this date was fixed on payment of costs. On that date, it appears, the costs were also not paid. The trial Court dismissed the suit for default of appearance as well as u/s 35-B of the Code of Civil Procedure, that day. The Plaintiffs filed an application for a certified copy of the said order on October 1, 1982, which was ready on October 23, 1982, and delivered on November 4, 1 82. Application for restoration of the suit was filed on November 11, 1982. Exclusion of time was claimed on the basis that the days spent in obtaining the certified copy of the order be excluded in computing the period of limitation. It was stated therein that the Plaintiffs had come to the Court along with the witnesses and had also appeared before the Court when the case was called, but they and their witnesses were told by Court to sit outside the Court room. When the case was again called and after hearing the call, the Plaintiffs had gone away to bring their counsel who was found to be busy in another Court, the suit was dismissed for default, as noticed earlier. These allegations were controverter in the reply filed on behalf of the Defendants. Both the Courts below have found that the application dated November 11, 1982, was barred by time and that Plaintiffs were not entitled to the exclusion of the time spent in obtaining the certified copy of the order dated September 29, 1982, u/s 12(2) of the Limitation Act. Thus, the application was held to be barred by time. It has also been found that the Plaintiffs had failed to make out a sufficient cause for the restoration of suit.

The learned Counsel for the Petitioner contended that u/s 12 of the Limitation Act, 1963, even if the certified copy of the order was not necessary to be filed along with the application for the restoration, he was entitled to the exclusion of the period spent in obtaining the same. In support of the contention, the learned Counsel relied upon Addl. Collector of Customs, Calcutta and Another Vs. Best and Co., . and Jijibhoy N. Surty v. T. S. Chettyar A. I. R. 1966 PC. 103. The learned Counsel also contended that there was sufficient cause for condonation of delay, if any, in filing the application for restoration of the suit, on payment of costs.

As regards the first contention, I do not find any merit therein. Both the above said cases are clearly distinguishable.

In M/s Best and Co.''s case (supra), the case had arisen out of an application for leave to appeal to the Supreme Court. Similarly in Jijibhoy N. Surty''s case (supra), it was an appeal against the decree. Section 12 (2) of the Limitation Act, 1963, reads as follows:

In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

The contentions raised in both the above-said two cases were that if by the rules framed by the High Court, a certified copy of the impugned decree or order was necessary to be filed along with the appeal, the requisite time u/s 12 could not be claimed for excluding the time in computing the period of limitation. They were repelled in the above-said cases. An application for restoration is not covered u/s 12(2) of the Limitation Act. Article 122 of the Limitation Act, provides for a period of 30 days for filing an application to restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs, from the date of dismissal. That being the situation, the requisite time as contemplated u/s 12(2) of the Limitation Act, could not be claimed by the Plaintiffs. In any case, a case has been made out for restoring the suit on payment of heavy costs. The suit was filed for the grant of the declaration and injunction. If the Plaintiff had failed to produce evidence, then they could be burdened with heavy costs and the application for restoration should have been allowed on payment of the said costs.

In view of the facts and circumstances of the present case, this revision petition succeeds and is allowed. The impugned orders are set aside and the application for restoration of the suit is allowed on payment of costs of Rs. 1,000/-. The parties have been directed to appear before the trial Court on March 27, 1987, on which date the costs will be paid by the Plaintiffs; failing which, this revision petition shall stand dismissed with costs. It is also directed that the Plaintiffs will be entitled to only one opportunity to lead their entire evidence at their own responsibility. Dasti summons as contemplated under Order XVI Rule 7-A of the Code of Civil Procedure, may be given, if so desired. Similarly, in order to avoid further delay in the disposal of the suit, the Defendant will also produce their entire evidence at their own responsibility.