TMI Blog1990 (1) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... il payment, interim and further interest, costs and various other reliefs. The writ of summons was duly served on the defendants Nos. 1 and 2. On or about 7th March, 1980, the defendant No. I duly entered appearance. An application was made by the plaintiff for final judgment in March, 1980. There was also an application on or about 7th April, 1980 on behalf of the defendant No. 1 for revocation of leave under Clause 12 of the Letters Patent. By an interim order dated 7th April, 1980, the suit and the proceedings therein was stayed. The application for final judgment and for revocation of leave was disposed of by giving directions for expeditious hearing of the suit. The suit was directed to appear at the top of the prospective list of suits on 2nd September, 1980. Thereafter, the defendant No. 2 also entered appearance. Both the defendants filed written statements. A peremptory order for discovery was made in April, 1981 and inspection was also taken. According to the plaintiff, all appropriate steps were taken in the suit for early hearing. The plaintiff's Advocate on Record wrote a letter in August, 1980 to the Registrar, High Court, Original Side, Calcutta, to place the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) The name of the petitioner 'Ganga Nagar Sugar Mills Ltd.' was not correctly printed in both the said two cause lists. The name of the petitioner was printed as The Ganga Nagar Mills Ltd. The name of the defendant No. 1 Upper Ganges Sugar Mills Ltd. was also incorrectly printed as Upper Ganga Sugar Mills Ltd. Due to the above-mentioned various reasons as also due to inadvertance and/or mistake the Court clerk of the petitioner's Advocate-on-Record could not mark and/or notice the above suit in the said cause lists dated 12-6-87 and 15-6-87. (e) The above suit having been not marked and/or noticed in the said cause lists dated 12-6-87 and 15-6-87 at the office of the petitioner's Advocate-on-Record as aforesaid, no one on behalf of the petitioner could appear before the Hon'ble Mr. Justice Prabir Kumar Majumdar at the time when the above suit was called on for hearing on 12-6-87 and 15-6-87. 4. This application for restoration was made by way of a Notice of Motion taken out on 13th June, 1988. The learned trial Judge considered the contention raised on behalf of the defendants that this applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the application for restoration. The learned Judge thereafter made this observation that this part of law has not yet been disturbed uptill now that if the order sought to be recall has been drawn up, completed and filed, then the Court loses the jurisdiction to entertain any application relating to such matter. 7. In our opinion, though the learned Judge purported to agree with the Division Bench, he has completely misconstrued the said Division Bench judgment. The Division Bench did not hold that merely because the order sought to be recalled has been drawn up. completed and filed, the Court loses its jurisdiction to entertain any application relating to such matter. The correct law laid down by the Division Bench is that (as the learned Judge himself noted initially) in exercise of inherent jurisdiction of the Original Side of this Court, this Court can recall an order before it is drawn up, completed and filed. What has been held and what is the correct law is that if an application for restoration is made within the period of limitation, that application cannot be dismissed merely on the ground that the order has already been drawn up, completed and filed. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order, the Court loses its jurisdiction to entertain an application for setting aside an ex parte order along with or without an application for condonation of delay. The prayer for condonation of delay relates to the application for setting aside an ex parte order/decree. The period of limitation has been set down in the Limitation Act and under certain circumstances this period of limitation is extended and/or excluded in computation of such period of limitation. An application for condonation of delay is also under the same Act. If upon computation of such period of limitation, the application for restoration is not barred by limitalion, then such application cannot be barred by limitation if delay is condoned in an application under Section 5 of the Limitation Act. The mere fact that the application for restoration is barred by the ordinary period of limitation, would not bar the Court from entertaining this application for condonation of delay for making such application for restoration. As a matter of fact the question of making an application for condonation under Section 5 arises only if it is otherwise barred by limitation. In our opinion, the learned Judge has misunde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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