I.A. Ansari, J.
1. The order under challenge in the present revision was passed, on 20.11.2001, by the learned Civil Judge (Junior Division), Bongaigaon, in Misc. (J) Case No. 12/2001, arising out of the Title Suit No. 02/2000, directing restoration of the suit aforementioned.
2. In a nutshell, material facts leading to this revision may be stated as follows:
(i) The opposite party instituted, as plaintiffs, Title Suit No. 02/2000 aforementioned and the same was dismissed for default on 3.7.2001. The plaintiffs filed an application, on 6.8.2001, under Order 9, Rule 9 CPC in the learned Court below seeking, restoration of the suit on the ground that there was mistake on the part of the Advocate's clerk in taking down the date fixed in the suit and as a result thereof, no steps could be taken on 3.7.2001 on behalf of the plaintiffs and the suit was dismissed for default and that the plaintiffs came to know about the same on 19.7.2001. This application gave rise to Misc. (J) Case No. 12/ 2001. The plaintiffs also made an application under Section 5 of the Limitation Act seeking condonation of delay in filing the application under Order 9, Rule 9 CPC on the ground that their engaged advocate was away from the station and that on his return only, the petitioners could take steps for filing the application for restoration.
(ii) The opposite party, as defendants, filed their objection against the application for restoration of the suit and also against the plaintiffs' application seeking condonation of delay.
(iii) In support of their application for restoration aforementioned, the plaintiffs examined two witnesses and, upon hearing the learned counsel for the parties, learned trial Court passed the impugned order restoring the suit. Feeling aggrieved, the defendants have come before this Court with the help of the present revision petition.
3. I have perused the materials on record including the impugned order, I have heard Mr. S. S. Sharma, learned counsel for the defendants-petitioners, and Mr. B. K. Goswami, learned senior advocate appearing on behalf of the plaintiffs-opposite party.
4. It has been submitted by Mr. S. S. Sharma that a bare reading of the impugned order will reveal that the learned trial Court restored the suit without condoning the delay in making the application for restoration of the suit. It is also submitted by Mr. Sharma that without condoning the delay, the learned trial Court lacked jurisdiction to deal with, and dispose of, the petition for restoration and, hence, the impugned order needs to be set aside.
5. While controverting the above submissions made on behalf of the petitioners, Mr. Goswami has not disputed the fact that without condoning the delay, the learned trial Court lacked the jurisdiction to entertain and dispose of the petition for restoration. What Mr. Goswami submits is that there was delay of barely two days in filing the application for restoration and if the impugned order is carefully read, it will appeal, according to Mr. Goswami, that though the Court did not specifically condone the delay, the Court appear to have felt satisfied that the delay of two days deserved to be condoned and it shall be treated to have condoned the delay in filing the application for restoration. It is also submitted by Mr. Goswami that since the learned trial Court had jurisdiction to condone the delay and it restored the suit, it may be presumed to have condoned the delay.
6. Support for his above submissions is sought to be derived by Mr. Goswami from the case of Abdul Gaffar and Ors. v. Gavas Singh and Ors., reported in AIR 1967 Patna 360 (FB).
7. Before entering into the rival submissions made before me on behalf of the parties, it needs to be noted that the decision in Abdul Gaffar (supra) does not lay down any general principle of law on the subject of condonation of delay. This decision shall, to my mind, be kept confined to the facts of the case.
8. It may be noted that in Abdul. Gaffar (supra), when the appeal came up for hearing before the learned lower appellate Court, it was pointed out, on behalf of the respondents, that one of the decree-holders, namely, plaintiff No. 7, Sirajuddin had not been made a party to the appeal and, hence, the appeal was not maintainable. In response to this objection, an application was filed by the appellant defendants on the next day under Order 41, Rules 20 and 33 and Section 151 of the Code of Civil Procedure stating that on account of inadvertence and oversight, the name of Sirajuddin had not been included in the memo of appeal and prayed that his name may be impleaded in the category of respondents. On the same day, the appellants filed another petition under Section 5 of the Limitation Act stating the same reasons for their omission to implead Sirajuddin and praying that the delay may be condoned. The Court heard both the parties and passed an order, wherein after some discussion of the case law, it held that it had jurisdiction under Order 41, Rule 20 read with Section 151 of the Code to allow the name of Sirajuddin to be impleaded as one of the respondents. When the matter came up before the Full Bench, it was urged, on behalf of the opposite party, that the order of the lower Court, on a fair construction, should also be taken to be an order condoning the delay under Section 5 of the Limitation Act and since this condonation was granted in exercise of the discretionary power conferred on the Court by Section 5 of the Limitation Act, it was not revisable by the Court. Disputing this contention, it was submitted, on behalf of the revision petitioners, that the lower Court did not pass any order on the petition under Section 5 of the Limitation Act. Declining to accede to this objection, the Full Bench held that though the order under challenge refers only to the application filed under Order 41, Rule 21 and Section 151 of the Code of Civil Procedure, the order of the previous date shows that both the petitions, namely, one under Order 41, Rules 20 and 33 and Section 151 of the Code of Civil Procedure, and the other under Section 5 of the Limitation Act were heard and, then, the case was posted for orders. In view of the fact that a portion of the order under challenge showed that apart from the applicability of Order 41, Rule 20 and Section 151 of the Code of Civil Procedure to the facts of the case, the learned lower Court was also satisfied that due to inadvertence, Sirajuddin had not been added as a respondent, the Full Bench held that as a matter of construction, the application under Section 5 of the Limitation Act shall be treated to have been allowed by the appellate Court, which had jurisdiction to condone the delay.
9. It is clear from the above that in the facts and circumstances of the case, which their Lordships were in seisin of in Abdul Gaffar (supra), their Lordships took the view that in the face of the facts and circumstances of the case, the order under challenge on a fair construction thereof should be taken to have condoned the delay.
10. It has not been laid down as an invariable rule in Abdul Gaffar (supra) that whenever an application for condonation of delay is made along with a miscellaneous application, such as, an application for restoration of suit, the Court, even if does not hear the application for condonation of delay or does not apply its mind to the application for delay, shall be presumed to have condoned the delay if the miscellaneous application, (e.g., application for restoration of suit) is allowed. It is noteworthy that in Abdul Gaffar (supra), it was fairly established before the revisional Court that the learned Court below had, indeed, heard the application for condonation of delay and the order under challenge indicated that the Court had, indeed, applied its mind on the aspect of delay inasmuch as it had mentioned in its order that it was satisfied that it was due to inadvertence that Sirajuddin had not been impleaded as a respondent. In the case at hand, however, the impugned order gives a clear indication that the application for condonation of delay was never heard. This apart, the impugned order shows that the learned trial Court did not consider, or apply its mind to, the application for condonation of delay.
11. It is trite that when an application for condonation of delay is made along with a miscellaneous application or appeal or revision, the court has to, first, condon the delay and if the delay is not condoned, then, the application/appeal/revision will not be entertained.
12. Though in a given case, even if the Court does no specifically state in its order that the delay is condoned, yet, if the facts and circumstances leading to the order gives an indication that the Court had applied its mind to the application for the condonation of delay and was convienced that the delay had been convincingly explained, the order will not be interfered in revision even if there is no formal indication from the order that the delay was condoned. If the order gives no indication whatsoever that the condonation application was heard or the Court applied its mind to the application for condonation of delay, the mere fact that the misc. application/appeal/revision has been allowed cannot be invariably stretched to mean that the question of delay was considered and decided by the Court.
13. In the case at hand, the learned trial Court merely examined two witnesses and passed the order allowing restoration of the suit. In this order, the learned trial Court only dealt with the question as to whether it was on account of the plaintiffs' fault that the suit was dismissed and on coming to the conclusion, that it was on account of error on the part of the counsel or pleader's clerk that the suit was dismissed, the learned trial Court directed restoration of the suit without even noticing the fact that the application for restoration was time-barred and an application for condonation of delay was pending.
14. Considering, therefore, the matter in its entirety, I am firmly of the view that impugned order is without jurisdiction inasmuch as the learned trial Court could not have allowed the application for restoration of the suit without, first, considering the application for condonation of delay and taking a decision thereon condoning the delay.
15. In the result and for the reasons discussed above, this revision succeeds and the impugned older is set aside. The matter is remanded to the learned trial Court with a direction to hear the parties on the application for condonation of delay and, then, pass appropriate order in the matter of condonation of delay and depending upon the decision, which might be reached by the learned trial Court on the question of condonation of delay, the learned trial Court shall consider and decide, upon hearing afresh, if necessary, the application for restoration of the suit.
16. In order to ensure expeditious disposal of the matter, parties to the suit are hereby directed to appear before the learned trial Court for further necessary order on 17.3.2003. No further notices need be served on the parties to the suit as this judgment and order stand pronounced in presence of the learned counsel for the parties.
17. Send forthwith a copy of this judgment and order to the learned Court below.