Decided on December 24,1993

Tourism Development Corp JAndK Appellant
Daljit Singh Azad Respondents


- (1.)THE petitioner corporation challenges the order dated 9 -3 -1993 passed by the Learned Sub Registrar (Munsiff), Jammu, restoring the suit of the respondent to its original number. The order is attached on the ground that the trial court had allowed the respondents application after delay of more than one year and it also failed to appreciate that "dead suit" could not be restored.
(2.)RECORD reveals that the respondent filed a civil suit, which was pending adjudication before the 1st Addl. Munsiff, Srinagar. He had engaged one Shri L.K. Jalali, advocate, to pursue the suit. The suit was dismissed in default of appearance of the plaintiff on 30 -4 -1991. Be that as it may, the respondent claims that he learnt about the migration of his advocate Shri Jalali to Jammu in Sept., 1991 and filed Civil Transfer Application No. 84/91 before this court which was allowed by order dated 11 -5 -1992 with consent of learned counsel for the parties. Shri B.S. Bali advocate appeared for the petitioner -defendant -corporation. He further seems to have asserted that after the suit was transferred to the court of Sub Registrar (Munsiff) Jammu, he came to know on 25 -5 -1992 that the suit had been dismissed in default on 30 -4 -1991 He accordingly filed an application praying for its restoration on the ground that he bad not known about the dismissal of the suit till 25 -5 -1992 and that he had a sufficient cause not to seek its restoration between April 30,1991 and May 26,1992.
(3.)MR . Johal, learned counsel for the petitioner contended that on the date the respondent (plaintiff) filed civil transfer application No. 24 of 1991 in this Court, his suit already stood dismissed. As such no suit could be transferred to the court of Sub Registrar (Munsiff), Jammu, nor could the transferee court take any step to consider its restoration or restore it because be had no competence to restore a dead suit. He also submitted that the court below had allowed the respondents application though he had made no application seeking condo nation of delay in filing the same and not to speak of any plausible explanation for delay. He relied upon AIR 1986 J&K 86, to show that the limitation provided for restores the suit under Art. 163 of the Limitation Act, is only 30 days from the date of dismissal, which does not include "the date of knowledge".
Mr. Goja, learned counsel for the respondent has, however, refuted that the respondent had failed to make any application seeking condo nation of delay. He submitted that the very fact that the petitioner had moved Civil Transfer application No. 84/91 in this Court in September 199, by itself showed that he was unaware of the dismissal of the suit on 30 -4 -1993. He asserted that he came to know about the dismissal only on 25 -5 -1992 where after he made an application seeking restoration of the suit.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.