Tripura High Court Held That Absence of Prayer for Condonation of Delay, If Not the Plaintiff’s Fault, Cannot Be Used To Dismiss Suit

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In the present case, Hon’ble Justice S Talapatra dealt with a petition to quash an order that denied restoration of a suit on the ground that no prayer for condonation of delay has been made and the suit is time-barred.

Facts

The plaintiff was unaware that her title suit had been transferred, and when she came to know that her suit was transferred due to bifurcation of the judicial district, she was informed that her suit was dismissed due to non-prosecution. She immediately instructed her counsel to file a restoration petition which was filed without a prayer for condonation of delay. The petition was dismissed on the solitary ground that it was barred under Order 9 Rule 4 CPC, and no condonation was prayed for a delay of 42 days. This order is being challenged before the High Court under Article 227 of the Indian Constitution.

Arguments Advanced

Counsel for petitioners submitted that it was due to the plaintiff being unaware of suit transfer that the dealt has been caused and hence the suit cannot be dismissed.

Counsel for respondents argued that there is no infirmity with the order as a prayer for condonation had not been presented and the suit was time-barred.

Court’s Observation and Conclusion

Court after having listened to the arguments observed that the delay was caused not due to the fault of the plaintiff, but because of the counsel’s fault who has made a mistake by not advising the plaintiff to apply for condonation of delay. To ensure substantive ends of justice the dismissal order has to be interfered with not on merit but to begin the judicial process to determine the legal end on substantive stance subject to payment of Rs 5000 to the defendant. Further has been granted to file an application for condonation of delay and restoration of the suit. After filing of such application, the civil judge shall consider the causes of delay and pass appropriate orders after providing an opportunity to object to the defendants. Hence the petition stood allowed.


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