SUPREME COURT OF INDIA

Before:- S.N. Variava and H.K. Sema, JJ.

Civil Appeal No. 2827 OF 2005 [Arising Out Of Slp (Civil) No.22713 Of 2003. D/d. 21.1.2005.

Shibanand Mukherjee - Appellants

Versus

Gopal Chandra De - Respondents

Civil Procedure Code, 1908, Order 17 Rule 1(2), Order 9 Rule 8 & Section 25B - Adjournment - Advocate for appellant had gone for an eye-operation and had even sent an adjournment note - Application for restoration dismissed by trial Court and high Court - Held, appellant should be given an opportunity by imposing sufficient costs - Direction that order of dismissal of suit to stand set aside on costs condition precedent fixed at Rs. 50,000/-

[Paras 2 and 3]

ORDER

S.N. Variava, J. - Leave granted.

2. Heard parties. This Appeal is against an order dated 18th August, 2003 whereby Revision has been dismissed. Briefly stated the facts are as follows:-

The Appellant had filed a Suit for declaration and injunction which got dismissed on 16th November, 1995. An application for restoration was filed. It also got dismissed for default on 3rd August, 1996. A second application was then filed for setting aside the earlier order of dismissal. An application under Section 5 of the Limitation Act was also filed along with this application. The trial court rejected that application on the ground that no sufficient cause has been made out. The Appeal against that order was also dismissed and the High Court has also dismissed the revision.

We, however, find that the first application for restoration was dismissed on 3rd August, 1996, when the advocate for the Appellant had gone for an eye operation and had even sent an adjournment note. In spite of that fact, the application appears to have been dismissed.

3. In our view, under these circumstances, the Appellant should be given an opportunity provided that the other side is compensated by payment of sufficient cost. We, therefore, direct that the orders of dismissal of the Suit dated 16th November, 1995 will stand set aside provided the Appellant pays to the Respondent, cost condition precedent fixed at Rs. 50,000/-. If such cost is paid, the Suit shall stand restored. Thereafter, the trial court to fix a date and proceed with the trial of the Suit without any further adjournment.

4. The Appeal stands disposed of according.

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