TATIA, J. - (1.) HEARD learned counsel for the petitioner.
(2.) BY this revision petition, the petitioner is challenging the order dated 12. 04. 2004 by which the appellate court allowed the appeal of the plaintiff respondent bank and set aside the dismissal of the suit, which was dismissed in default. Brief facts of the case are that the plaintiff's suit was dismissed in default as nobody appeared before the Trial Court on 6. 03. 1995. The plaintiff bank submitted an application under Rule 9 Order 9 C. P. C. stating therein that on that day, the advocates were on strike and the plaintiff had no knowledge about the date of the suit. The suit was fixed for framing issues only and the plaintiff's presence was not at all necessary as the court could have framed the issues and could have proceeded with the suit, therefore, the suit should not have been dismissed by the court below. It is further prayed that since the matter is relating to the recovery of the bank money and in case, the suit will not be restored, it will cause serious injustice. The defendant submitted reply to the application and has raised an objection that the application under Rule 9 Order 9 C. P. C. has not been filed by an authorized person as it has been signed by one Shri J. P. Sharma, Senior Manager of the Bank whereas originally the plaint was submitted with the sign of Shri K. M. Mathur, Regional Manager of the Bank. It is also submitted that the grounds given in the application are vague and the application has been filed after inordinate delay without there being any application for condonation of delay. It is also submitted that there appears to be no reason for non-appearance of the plaintiff on the date when the suit was called for by the court below. The Trial Court held that the application has not been filed by the proper person, therefore, the application deserves to be dismissed. Despite holding as above, the court below proceeded to decide the application on merit. The Trial Court held that the application has been filed after inordinate delay and the application for condonation of delay has also not been filed, therefore, the application is barred by time. The Trial Court has also found that the absence of the party and their advocate on the date when the suit was dismissed, was without any just and proper cause. The respondent bank preferred appeal against the said order of the Trial Court. In the appeal, the respondent bank submitted an application under Section 5 of the Limitation Act to meet with the objection of not filing of application for condonation of delay along with application under Order 9 Rule 9 C. P. C. The appellate court after relying upon the judgment of the Hon'ble Supreme Court delivered in the case of Rafiq & Anr. vs. Munshi Lal & Anr. (1), held that the respondent bank is a public financial institution and the plaintiff had no knowledge of the date fixed by the court below and in view of the fact that the Trial Court itself on earlier occasions, in same situation adjourned the case and there was no change in the circumstance on 6th Sept. , 1995. The same situation of absence of the plaintiff was there on 24th Oct. , 1994 and 9th Dec. , 1994 also, then the court below should not have dismissed the suit on the date when the court below could have proceeded with the suit by framing the issues. In these circumstances, the first appellate court after condoning the delay in filing the application, set aside the order of dismissal of the suit.
(3.) LEARNED counsel for the petitioner vehemently submitted that the first appellate court has not considered the reasons given by the Trial Court and the application under Section 5 of the Limitation Act, which was filed by the plaintiff-bank in appeal, cannot be considered as an application, which is required to be filed before the Trial Court for condonation of delay in moving the application for restoration of suit. It is also submitted that the reasons given by the plaintiffs for their absence on the relevant date is not sufficient ground for setting aside the order of dismissal of the suit. The learned counsel for the petitioner submits that this court in a recent judgment delivered in the case of M/s. Jugal Bhatia Pvt. Ltd. vs. Shri Nath Cement Industries Pvt. Ltd. (2), held that even if, the advocate told the litigant that he will inform the litigant to remain present in the court, cannot help the careless and negligent litigant and even if, said assurance was given, still the litigant is required to contact with his advocate and in view of the above, the reason given by the plaintiff is not sufficient for condonation of delay. I considered the submissions of learned counsel for the petitioner and perused the facts of the case. Undisputedly, the suit was filed by the Bank through its representative. The suit was dismissed and the application under Order 9 Rule 9 C. P. C. was filed by the Bank and not by any person in his individual and personal capacity. The Trial Court failed to understand difference between the plaintiff and plaintiff's representative when the Trial Court observed that the suit was not filed by the applicant. The application itself contains the title which clearly shows that the application was filed by the plaintiff- bank and not by any person. Any change of officer of the bank cannot deprive that successor in office or any other officer, who is authorized specifically, or who can in exercise of his power by virtue of his post, can continue with the proceedings originally initiated on behalf of the bank by a competent person. In the same sequence, the successor in office or the officer, who is competent to move the application, can submit the application on behalf of the bank in court including the application for restoration of suit. Therefore, the reasons given by the court below appears to be contrary to the law, when the court below held that the suit was not filed by the applicant, therefore, applicant has no right to move application for restoration of the suit. The Trial Court since failed to appreciate the facts, which were taken note of by the appellate court and since the appellate court has given sufficient reason for holding the order of dismissal of the suit as wrong, therefore, the reason given by the first appellate court is an independent ground and can be a just ground for setting aside the entire order of the Trial Court. When the appellate court finds that the court below either failed to consider core question or has not applied its mind to the core question and if that core question if decided in favour of the aggrieved party, would reverse the result of the decision, then in same case even without reversing the findings or without rejecting the reasons, the appellant court may set aside the order of the lower court, but it depends upon fact of each case. ;