S.K. Keshote, J. - (1.) Heard learned counsel for the parties, perused the memo of revision petition and the order of the Courts below. For the perusal of the Court, copies of documents have also been taken from the counsel for the plaintiff petitioner i.e. receipt of the Government of Rajasthan, repayment of amount for use and occupation charges of land in dispute. Receipts are in the name of Harbans Lal, a stone contractor. These are in the name of Harbans Lal, a partner of the firm. It is the case of the plaintiff petitioner in the suit that the land in dispute has been taken by the firm on rent from Durga Prasad, respondent No. 3. In the suit the plaintiff petitioner in suit that the land in dispute has been taken by the firm on rent from Durga Prasad, respondent No. 3. In the suit the plaintiff petitioner engaged the services of Liladhar Agrawal, Advocate and one Shyam Gupta, Advocate. The suit has been dismissed for non-prosecution as the advocate pleaded no instructions. This has happened on 15.9.1993. On that date the plaintiff petitioner was not present in the Court as he was ill. Immediately after he came to know about this fact, he filed application on 13.10.1993 for restoration of the suit. He has given out the explanation for his absence. Learned trial Court rejected this application only on the ground that the same has been filed beyond 30 days from the date of dismissal of the suit and application under section 5 of the Limitation Act has not been filed for condonation of delay. That order has been confirmed by the appellate Court, hence this revision petition.
(2.) Learned counsel for the plaintiff petitioner raised many fold contentions in support of this revision petition. He has also relied on the decisions in the case of Rafiq and Another v. Munshilal and Another, AIR 1981 Supreme Court 1400; Dulal Chandra Ojha v. Banamali Guchait and Others, AIR 1989 Calcutta 91 and Suresh Kumar and Others v. Kurban Ussain Taiyab Ali and Others, AIR 1996 Madhya Pradesh 151 .
(3.) I find sufficient merits in the contention of the learned counsel for the plaintiff petitioner that the formal application for condonation of delay under section 5 of Limitation Act would not be required in each and every case. Each case has to be considered, referred and decided on its own facts. The case of the plaintiff before the trial Court was that the suit has been dismissed for non-prosecution as the counsel has pleaded no instructions. This application could have been filed only after it came to the notice of the plaintiff petitioner and that is how that application was filed. Along with this application there is no dispute that the plaintiff petitioner filed affidavit. From the reading of the application filed by the plaintiff petitioner under Order 9 Rule 9 Civil Procedure Code and the affidavit filed in support thereof, I find that the explanation has been furnished for the delay. He has given out sufficient cause for the absence on the date on which the suit was called and was dismissed for non-prosecution on pleading of no instruction by the counsel. It is not in dispute that the Court has not given notice of this fact of pleading no instruction by the counsel to the plaintiff petitioner. Not only this the counsel has also not informed to him of this fact of pleading no instructions. On merits, it is a case where the orders of the Courts below are allowed to stand, it will certainly occasion failure of justice to the plaintiff petitioner. Having gone through the documents produced for perusal of the Court by the plaintiff petitioner prima facie he has a case for consideration and only on the ground that counsel has pleaded no instructions in case the suit is allowed to go in default, it will be denial of justice or condemned unheard. This is against basic principles of natural justice and fair play.;