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1990 (1) TMI 325

..... on for condonation of delay and for recalling the order dated 15th June, 1987 passed by the learned trial Judge dismissing the suit for non-prosecution. 2. The facts of this case are shortly as follows : On or about 1st February, 1980, the plaintiff instituted this suit against the defendants for leave under Clause 12 of the Letters Patent, decree against the defendants or such of them as may be held liable to the plaintiff for the sum of ₹ 14,37,400.23 paise, declaration that the sum of ₹ 9,33,377.16 paise is payable by the defendants or either of them to the plaintiff and decree directing the defendants to pay the sum of ₹ 9,33,377.16 paise along with interest thereon from 31st January, 1977 at the rate of 18% per annum until 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. .....

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..... t transpired as follows : (a) The above suit had appeared in the daily peremptory list before the Hon'ble Mr. Justice Prabir Kumar Majumdar on Friday 12-6-87 and again on Monday 15-6-87. (b) The suit number as also the cause-title and name of the petitioner's Advocate-on-Record was not printed properly and clearly in the said cause lists dated 12-6-87 and 15-6-87, In fact the suit number, the cause-title as also the name of the petitioner's Advocate-on-Record were not correctly printed. (c) The name of the Advocate-on-Record for the defendant No. I M/s. Khaitan and Co. was also not printed in the said cause lists dated 12-6-87 and 15-6-87. (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 .....

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..... Judge meant by the same. 6. The learned Judge observed that the application for restoration has been taken out long after the dismissal of the suit. The learned Judge rightly pointed out that such an application might, however, be entertained condoning the delay under Section 5 of the Limitation Act if there is sufficient reason for condoning the delay. However, the learned Judge observed that such power of condoning the delay under Section 5 of the Limitation Act can only be exercised if the Court has jurisdiction to entertain 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 .....

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..... ome absurd. Even if an order is drawn up, completed and filed, the application for restoration lies if it is made within the period of limitation. Even if such an application for restoration is not made within the period of limitation, if sufficient cause is shown for condonation of delay, still such application for restoration lies. We do not see how it can be said that merely because the order has been drawn up, completed and filed and accordingly the Court cannot exercise its inherent jurisdiction to re-call 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 b .....

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