DAVINDER PAL SEHGAL AND ANR. versus M/S PARTAP STEEL ROLLING MILLS PVT. LTD. AND ORS.

Citation: [2001] SUPP. 5 S.C.R. 631 · Decided: 13-12-2001 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

DAVINDER PAL SEHGAL AND ANR. 
v. 
MIS PART AP STEEL ROLLING MILLS PVT. LTD. AND ORS. 
DECEMBER 13, 2001 
[M.B. SHAH AND B.N. AGRAWAL, JJ.] 
Code of Civil Procedure, 1908/Limitation Act, 1963-0rder 9, Rule 91 
Section 5-Dismissal of suit of appellants for non prosecution and subsequent 
dismissal of restoration applications by trial Court-High Court remanding 
A 
B 
and directing the trial Court to dispose the suit on merits-Filing of petition 
C 
for condonation qf delay in .filing the restoration application b~fore the trial 
court by the appellants-Restoration of suit ordered by the trial court-
Dismissal of restoration application by High Court as condonation of delay 
petition not considered by the trial court-On appeal, held, the trial court 
considered the condonation qf delay petition before restoring the suit-ilence 
restoration qf suit valid. 
D 
Appellant-plaintiffs, who were settled abroad, filed a suit for decla-
ration far recovery of possession of property against defendants before 
trial court, The appellants appointed an attorney who in tum appointed an 
advocate to represent the case before the trial court. On the date of 
hearing, the advocate for the appellants could not attend the court since on 
that day his father suffered a heart attack and died later. On the next day, 
the attorney, on enquiry, came to know that the trial court issued notices to 
the appellants as nobody appeared but he was not informed of the next 
date of hearing. Neither the appellants nor the counsel received any notices 
from the trial Court regarding the next hearing in the suit. After about 3 
months, the advocate, on enquiry, came to know that the next date of 
hearing was already over and the trial court dismissed the suit for non 
prosecution. 
An application for restoration of the suit under Order 9 Rule 9 CPC 
was filed by the appellants before the trial court. The application was 
dismissed as nobody appeared for the appellants. Another application was 
also dismissed by the trial court. On appeal, the High Court set aside the 
order of the trial Court and directed it to dispose of the suit on merits. 
After remand, the appellants filed a petition under Section 5 of the Limita-
tion Act, 1963 before the trial court for condonation of delay in filing the 
631 
E 
F 
G 
H 
632 
SUPREME COURT REPORTS 
[2001] SUPP. 5 S.C.R. 
A 
restoration application. The trial court allowed the application and re· 
stored the suit. High Court allowed the appeal filed by the respondents and 
dismissed the restoration application filed by the appellants on the ground 
that there was no consideration by the trial court on the point of limitation. 
B 
c 
In appeal to this Court, the appellants contended that the grounds 
for application for restoration of the suit aud the condonation of delay, 
which were fully stated in the restoration application were considered by 
the trial court and the trial court deemed to have condoned the delay in 
filing the restoration application. 
The respondents contended that the application for restoration of 
the suit by the appellants was earlier dismissed for non prosecution by the 
trial court. 
Allowing the appeal, the Court 
D 
HELD: 1.1. A perusal of the restoration application and the petition 
E 
filed for condonation of delay under Section 5 of the Limitation Act, 1963 
shows all relevant facts were stated not only to show that the appellants 
had sufficient cause for non-appearance on the date of hearing but also to 
show sufficient canse for condonation of delay in filing the restoration 
application. That is why in the petition for Condonation of delay, it has 
been simply stated that facts stated in the restoration application may be 
taken into consideration for condonation of delay in filing the restoration 
application. Therefore, merely because in the order of trial court, specifi· 
cally, there is no reference to the petition for condonation of delay, it 
cannot be said that it did not consider the same. From a bare perusal of the 
F 
order, it appears that the grounds stated in the restoration application for 
non appearance on the date of hearing and the delay in filing the restora-
tion application were considered by the trial court and it had restored the 
suit. Hence, it cannot be said that the order of restoration has been passed 
without condoning the delay in filing the restoration application.[635-B-D] 
G 
1.2 The submission of the respondents cannot be taken to be a 
ground f

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