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Judgment
Rajesh H. Shukla, J.—The present Appeal from Order has been filed by the Appellant / Original Plaintiff being aggrieved with the impugned judgment and order passed below Exhibit. 1 in Farifile (Restoration) Application No. 1 of 2011 in Special Civil Suit No. 525 of 1997 by the learned 5th Additional Senior Civil Judge, Surat dated 16.9.2011 on the grounds stated in the memo of Appeal from Order. Heard learned Advocate Ms. K.J. Brahmbhatt for the Appellant and learned Advocate Shri Vibhuti Nanavati for Respondent No. 2. Though served, no one appears for Respondent No. 1.
Having regard to the facts and circumstances as well as the observations made by the Hon''ble Apex Court in a judgment reported in Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs. and Others, and also considering the fact that there is a delay in filing the restoration application due to the communication gap between the Advocate and the Appellant, which has lead to the impugned order. However, it is well accepted that the provisions of Section 5 of the Limitation Act has to be interpreted liberally if the sufficient cause is made out. In the facts of the present case, having regard to the facts, sufficient cause can be said to have been made out.
The Hon''ble Apex Court in a judgment reported in N. Balakrishnan Vs. M. Krishnamurthy, has made the observations with regard to the approach, which has been quoted in the aforesaid judgment in case of Perumon Bhagvathy Devaswom Perinandu Village v. Bhargavi Amma (Dead) by LRS and Others (supra). It is observed:
... The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. ...
Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. ....
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words ''sufficient cause'' u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. ....
Therefore, having regard to the aforesaid observations as well as the broad guidelines laid down by the Hon''ble Apex Court in catena of judicial pronouncements with regard to approach, the interest of justice would be served if the present Appeal from Order along with Civil Application for condonation of delay in filing the restoration application is allowed.
It is required to be mentioned as such, as stated in the application, the delay in fact could be considered from the date of the knowledge, and as stated, it came to the notice of the Appellant through the lawyer only on 12.10.2010, and thereafter, within 30 days the Application has been filed. It is required to be mentioned that the condonation of delay is one aspect and the limitation prescribed in Order 9 Rule 4 may not be a absolute time frame inasmuch as sub Rule (2) of Rule 4 of Order 9 provide that the provisions of Section 5 of the Limitation Act shall also apply to any such application made under this Rule. In other words, if the application is made with sufficient case, then the same has to be considered. The Court below has failed to appreciate this aspect.
It is in these circumstances, Civil Application No. 7991 of 2012 for restoration of the Civil Suit, which has been dismissed for default, deserves to be allowed and the present Appeal from Order therefore deserves to be allowed and accordingly stands allowed, subject to depositing the cost of Rs. 5000/- (Rupees Five thousand) before the trial court within 15 days, which shall be transmitted to the legal aid. The impugned order passed by the learned 5th Additional Senior Civil Judge, Surat below Exhibit.1 in Farifile (Restoration) Application No. 1 of 2011 in Special Civil Suit No. 525 of 1997 dated 16.9.2011 rejecting the application of the Appellant / Applicant for restoration of Civil Suit No. 525 of 1997, is hereby quashed and set aside. The Civil Suit No. 525 of 1997 is therefore ordered to be restored to the file with a clarification that the Appellant / Original Plaintiff shall cooperate with the trial court for expeditious disposal of the Suit and shall not ask for any further time. In view of the order passed, Civil Application No. 7991 of 2012 also stands allowed. Delay is condoned.
Direct service is permitted.