Bijitendra Mohan Mitra, J. - (1.) The present revisional application is directed against Order No. 62 dated 31.10 98 passed by the Civil Judge (Senior Division) Durgapore in Misc. Case no 4 of 1998 arising out of a proceeding under Order 9 Rule 9 of the Code of Civil Procedure. By the impugned order the main application under Order 9 Rule 9 of the Code of Civil Procedure stood allowed on contest. At the time of the hearing of the motion while assailing the said impugned order it has been pointed cut that filing of the substantive petition under Order 9 Rule 9 of the Code Civil of Procedure is proceeded by filing of an application under section 5 of the Limitation Act for condonation of delay in initiation of the miscellaneous proceeding. The main attack is centered round on the propriety about condonation of delay while the learned Judge of the trial Court has allowed the petition under section 5 of the Limitation Act. It appears from the perusal of the order impugned that there was an averment about restoration of Title Suit No. 65 of 1995 which was alleged to have stood dismissed for default by the plaintiff/petitioner on 4th of April, 1997 along with a prayer for restoration. There were various allegations giving rise to the initiation of an appeal before the Court of the District Judge at Burdwan who has vacated the order of injunction but the same was alleged to have been passed by way of an order of the High Court and against the same matter went up to the Apex Court in SLP No. 1998 of 1997. It has been stated in the miscellaneous proceeding under Order 9 Rule 9 of the Code of Civil Procedure that the petitioner for the first time came to know of the dismissal of the original suit by the trial Court on 4th of April, 1997. The said Order 9 Rule 9 proceeding was accompanied by an application under section 5 of the Limitation Act and it transpires that by Order No. 5, dated 15.11.95 the Court of the Additional District Judge being the Appeal Court remanded the case back to the trial Court and date was fixed oa 15th March, 1997 when the petitioner was found absent for which the petitioner was directed to show cause on 15.4.97 is to why the suit would not be dismissed for default. It is alleged on j. behalf of the opposite party that the petitioner did not take any step in the trial Court and the case of the petitioner is that he came to know about the dismissal of the case in the Supreme Court while the matter was being heard there on 4th of May, 1998. This Court while considering the case on sufficiency of cause has taken note of the fact that the appeal Court has remitted the case back by Order No. 5, dated 15.11.95 and the case record was sent back to the trial Court and the date was fixed on 15th March, 1997. It does not appear from the order-sheet or from the stand taken by either of the parties as to whether the petitioner or bis Advocate has been intimated from the Court concerned about the transmission of the record to the Trial Court and about the pro posted fixation of the date of hearing. It is well-known in view of the nor order of decisions pronounced by this High Court that while remitting the case back to the trial Court it is the duty of the Court either to inform the concerned Advocate or the party about the transmission of the record to trial Court and proposed fixation of the date of hearing. It does not appear from the available records before this forum as to whether the petitioner or his Advocate was made aware by an intimation sent from Court about the transmission of records from the appeal Court to the trial Court and on his knowing about his proposed fixation on 15th March, 1997. la the background of the same when the petitioner had been any with his pending litigation before the Apex Court with regard to the hearing of SLP petition No. 1998 of 1997 he for the first time came to know there the original suit in the trial Court has been dismissed on 14th of April, 1997. The petitioner has soon then rushed to the trial Court and has directed steps to be taken and reference was made in the impugned order about the submission that the petitioner came to know about the dismissal of the suit before the Hon'ble Supreme Court on 4th of May, 1998 and thereafter he rushed to Durgapore and initiated the Miso Case on 8th of May, 1998. The petitioner appears to be landed in a region of quandary about the fixation of the date and subsequent dismissal of the suit because of glaring absence on record about official intimation being sent from the Appeal Court to the Trial Court about the transmission of records and proposed fixation of the matter either to his lawyer or to the petitioner himself. That appears to be the nemesis of the confusion and in the backdrop of the same the petitioner has prayed for condonation of delay. It is necessary to refer to some of the salient decision of the Supreme Court, namely, the case of Collector, Land Acquisition, Anantnag and Another- Appellants v. Mst. Katiji and others-Respondents, reported in AIR 1987 SC 1353, which has dealt with the question of standard to be applied in determining the meaning to the nomenclature of "sufficient cause". In the said judgment, the Supreme Court has recommended for adaptation of a liberal approach while considering sufficiency of cause and it is needed to give reasons in a detailed manner. According to the observation made therein the Supreme Court has opined that the refusal of condonation of delay may result in a meritorious matter to be thrown out at the very threshold and because of that justice may be defeated which could have been otherwise decided on merits. It is the further observation that every day's delay must be explained cannot be comprehended in a pendantic approach. There is further caution given that no presumption can be made in favour of the proposition that delay caused deliberately or on account of culpable negligence or on mala fide then a litigant would not come into the arena of litigation. Even the Supreme Court has desired I. that the message as aforesaid should percolate into domain of the hierarchy of the judiciary. The aforesaid decision was considered to be a landmark decision for a considerable period of time. Thereafter some tangential views have been taken by the Supreme Court and Mr. Banerjee, the learned advocate appearing for the petitioner has referred to the case of Hindusthan Petrolatum Corporation Ltd -Appellant v. Yashwant Gajanan Joshi & Ors.-I Respondents reported in AIR 1991 SC 933 and Mr. Banerjee has drawn the attention of this Court to a decision of the Supreme Court that the SLP was barred by limitation by ninety days and it was not satisfied with the ground mentioned in the application for condonation of delay. That observation of the Supreme Court is about recording of its non-satisfaction in the background of the facts of that particular case but in that respect this Court feels that the said decision has not laid down any ratio of law which is required to be followed or which could be stated to be tangential point from the earlier view as mentioned hereinbefore. Next Mr. Banerjee, learned Advocate appearing for the petitioner has referred to a contemporaneous decision of the Supreme Court in the case of Ashis Kumar v. Co-operative Housing Society Ltd., reported in 1998 West Bengal Law Reporter 15, where the Supreme Court has observed that unless proper explanation is given the valuable right created in favour of the respondent under section 5 of the Limitation Act cannot he taken away. According to the observation of the Supreme Court the proposition rotates round the interpretation about proper explanation leading to an inference to sufficient cause and the same does net appear to be at cross purpose to the decision of AIR 1987 SC 1353 (supra). Even in the earlier decision of the Supreme Court as referred to here being reported in AIR 1987 has not abrogated the provision of section 5 of the Limitation Act but it has only laid down elaborate principles delineated under these different categories pave the path for formation on the basis of the ultimate conclusion of the Supreme Court and it has spelt out the spirit and philosophy of the provision of the course of interpretation of the expression "sufficient cause". There is no dichotomy in between the two decisions though the same has been ascribed to be the tangential view by Mr. Banerjee but this Court has not been able to decipher any tangential dimension in the latest decision. The entire debate is centered round about construction of sufficiency of cause where facts are to be taken into account and pith and substance of the proposition is that whether there is a reasonable cause being backed up by a bona fide approach of the litigant. Here, the records will bear out that one of the litigants has taken the trouble of travelling up to the Supreme Court and it is too much to expect that he will contribute to the cause for dismissal of his suit. The same is not in consonance with the common sense approach and not in the tune with the normal behaviour of a litigant. It is worthwhile to keep it in mind that justice oriented approach has to be given while making assessment of sufficient cause without abrogating the provision of section 5 of the Limitation Act. Therefore, this Court as indicated earlier has felt that the nemesis of sufficiency of cause may lie hidden in the pandoras box because of the non-communication of the Court of appeal by way of official communication cither to the party or to the concerned lawyer about the transmission of the records of the case and about fixation of the proposed date. As a result of the same if the litigant is landed in a region of quandary then approach of technicality will make the pith and substance of sufficiency of cause denuded of very basis. Therefore, this Court cannot toe in with the technical approach as a result of which it cannot share the view that delay should not have been condoned.
(2.) So far as restoration of the miscellaneous proceeding under Order 9 Rule 9 of the Code of Civil Procedure the discretion rests with the original Adjudicating Authority and Revisional forum cannot salvage the rigours as there are restrictions on the mode of exercise of revisional power. As such it does not feel inclined to interfere also with that part of the order. Accordingly, the instant revisional application stands dismissed.
(3.) If applied for, let a xerox certified copy of this order be given to the learned Advocates for the parties at an early date. Revisional application dismissed.;