M/s Ajanta Merchants Pvt. Ltd vs Sriprakash Mishra & Others

Lok Pal Singh, J

1) Petitioner company has invoked the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking an appropriate direction for setting aside the order 21.08.2018, passed by Addl. Civil Judge II (Sr. Div.), Dehradun, in Misc. Case no. 172 of 2017, M/s Ajanta Merchants Pvt. Ltd. vs Sriprakash Mishra and others, whereby the restoration application filed by the petitioner company / plaintiff has been rejected.

2) Briefly put, facts of the case are that the petitioner company / plaintiff instituted Original Suit no. 543 of 2011, M/s Ajanta Merchant Pvt. Ltd. vs Sriprakash Mishra and others, in the court of Addl. Civil Judge II (Sr. Div.), Dehradun. The said suit instituted by the petitioner company / plaintiff was dismissed for non-prosecution of the parties vide order dated 22.07.2013 as well as on the ground that the ad valorem court fee, as per the valuation of the suit, was not paid by the petitioner company in view of the order dated 29.04.2013, passed by the trial court while deciding issue no. (iv) in the suit.

3) Petitioner company filed restoration application to restore the suit to its original number and to recall the order dated 22.07.2013 along with delay condonation application, as there was a delay of 1545 days in moving the restoration application. The respondent no. 1 / defendant did not raise any objection against the delay condonation application as well as the restoration application. Despite that, learned trial court rejected the delay condonation application holding that the applicant has not clarified the fact when he came to know about the dismissal of order dated 22.07.2013 and having considered the fact that delay is inordinate and has not been sufficiently explained, nor any document has been filed in support of the averments made therein, rejected the application filed under Section 5 of the Limitation Act. Consequently, the restoration application under Order 9 Rule 4 of C.P.C. was also dismissed.

4) Heard learned counsel for the parties and perused the documents available on record.

5) Learned counsel for the petitioner company would submit that the Management of the petitioner company changed its Directors and the earlier Director did not inform the new Director about the pendency of the suit. When the new Director, who is an old lady, came to know that the suit instituted by the petitioner company / plaintiff has been dismissed for non-prosecution, restoration application to restore the order dated 22.07.2013 was moved along with delay condonation application.

6) It is contended that the delay has been sufficiently explained, but the learned trial court had adopted a hyper technical and pedantic view while rejecting the delay condonation application. It is further contended that objections were not raised by the respondent no. 1 / defendant against the delay condonation application and the delay has been sufficiently explained. Though the delay in moving the restoration application is inordinate, but keeping in view the fact that the plaintiff may institute a fresh suit or got restored the suit under Order 9 Rule 4 of C.P.C., when such suit was dismissed in absentia of both the parties, the learned trial court has completely failed to consider this legal proposition. It is also contended that in such view of the matter, the learned trial court ought to have allowed the delay condonation application of the plaintiff / petitioner company.

7) Learned counsel for respondent no. 1 / defendant would submit that issue no. (iv) was decided and the plaintiff / petitioner company was directed to deposit the ad valorem court fee as per the valuation of the suit within the stipulated period, but neither the ad valorem court fee was deposited, nor the plaintiff remained present on the date fixed, as such, the trial court dismissed the suit for non-prosecution.

8) Having considered the submissions of learned counsel for the parties and keeping in view the settled proposition of law that when the delay has been explained sufficiently irrespective of the period of delay, the court should not adopt a hyper technical approach or a pedantic view in rejecting the delay condonation application. A perusal of the impugned order would reveal that the learned trial court has adopted a pedantic view in rejecting the delay condonation application, though the delay has been sufficiently explained.

9) Civil Misc. Application CLMA no. 4978 of 2019 has been filed by the petitioner company through its Director Mr. Om Prakash Gupta, stating therein, that the petitioner company is ready and willing to deposit the ad valorem court fee as per the valuation of the suit, strictly in accordance with the order dated 29.04.2013 passed by the learned trial court vide, while deciding issue no. (iv) in the original suit.

10) The prayer made by learned counsel for the petitioner company is innocuous and is worth accepting. Accordingly, delay in moving the restoration application is condoned. Delay condonation application (paper no. 5C2) under Section 5 of the Limitation Act is allowed. Restoration application (paper no. 3B) under Order 9 Rule 4 of C.P.C. is also allowed. Original Suit no. 543 of 2011 is restored to its original number. The petitioner company shall pay the ad valorem court fee, as per the valuation of the suit, within 30 days from today before the trial court. In case, court fee is not deposited by the petitioner company, the order of dismissal of the suit shall stand revived.

11) In case, the court fee is deposited by the petitioner company as directed above, the learned trial court shall make an endeavour to decide the pending suit expeditiously without granting unnecessary adjournment to either of the parties, preferably within a period of one year from today.

12) With the directions as above, the writ petition is finally disposed of. No order as to costs.