Calcutta High Court
Fairland Development Private Limited vs Bithal Das Kothari on 7 May, 2025
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IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA NO. GA/3/2025
In CS/17/2010
FAIRLAND DEVELOPMENT PRIVATE LIMITED
VS
BITHAL DAS KOTHARI, SECTY, WEST BENGAL HOSIERY ASSOCIATION &
BEFORE:
THE HON'BLE JUSTICE BISWAROOP CHOWDHURY
Date: 7th May, 2025
Appearance:
Mr. Dwaipayan Basu Mullick, Adv.
Mr. Saunavo Basu, Adv.
Ms. Sweta Chakraborty, Adv.
...for the petitioner.
Mr. Sourav Sengupta, Adv.
Mr. Siddhartha Ghosh, Adv.
Mr. Debdeep Sinha, Adv.
Mr. Aman Baid, Adv.
Mr. Bhaskar Dwivedi, Adv.
...for the defendants.
This is an application filed by the petitioner/plaintiff praying for recalling
the order dated November 17, 2023 passed by the Hon'ble Justice Krishna Rao
dismissing the suit being C.S. No. 17 of 2010 and restoring the suit to file after
condoning the delay.
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It is the contention of the petitioner/plaintiff that the plaintiff filed this
suit against the respondents/defendants. After filing of this suit the
defendants/respondents herein has filed a counter suit being C/S No-160 of
2020. The respondents/defendants have not filed written statement in the
instant suit.
It is further contended that the said suit came up for hearing on 7th
February 2017 wherein the Hon’ble Justice Arijit Banerjee was pleased to
release the said suit from his list on the ground the respondents/defendants
has filed a counter suit against the plaintiff and both suits are to be tried
together. After that both suits were never tried together. On 09-10-2023, the
suit being C.S. No. 17 of 2010 came up for hearing before Hon’ble Justice
Krishna Rao wherein on the prayer of the counsel for the plaintiff/petitioner,
His Lordship was pleased to adjourn the said suit till 17-11-2023. It is
contended that the petitioner in an endeavour to get the matter heard and
disposed of approached its present Advocate-on-Record found that the matter
was dismissed for default by an order dated 17th November 2023 passed by the
Hon’ble Justice Krishna Rao. It is further contended that the petitioner’s
erstwhile advocate was entrusted for the proper conduct of the proceedings,
and the petitioner totally depended upon his erstwhile Advocate. No intimation
that the said suit having been listed was ever received by the petitioner. It is
also contended that the petitioner came to know of the order dated November
17, 2023 for the first time on 01.02.2024. Thereafter the petitioner took
immediate steps to collect all the papers and obtain change of attorney from its
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erstwhile Advocate on record and for such the present Advocate-on-record took
inspection of the documents of the said suit upon notice to the concern
department of this Court and after taking necessary inspection applied for the
certified copies of the necessary documents of the said suit and finally received
it on 21-03-2024. Subsequently an application for restoration of the said suit
was filed being G.A. No. 2 of 2024 but by an order dated 25-09-2024 passed by
the Hon’ble Justice Krishna Rao it was dismissed as withdrawn with the liberty
to file afresh. In terms of the said leave this application was filed. It is further
contended that the petitioner is not guilty of any latches and/or negligence and
have been prosecuting the matter with due diligence. The petitioner cannot be
faulted for negligence on their erstwhile Advocate-on-record. Due to factors
beyond the control of the petitioner the petitioner could not be present.
The defendant/respondent has contested the application by filing
Affidavit in opposition.
The first contention of the Defendants is that the said application has
been affirmed for and on behalf of a non-existent entity. It is contended that
the suit was filed by one Fairland Development Private Limited. By way of fresh
Certificate of incorporation issued on 14th September, 2010, the name of the
company was further changed to Fairland Development India Limited on 27th
September, 2010. The second contention of the Defendant is that blatant
statements were made against previous advocate-on-record; and as evident
from records the plaintiff/petitioner had taken out an application GA-2/2024
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in connection to the instant suit seeking the self same reliefs contained in the
present application. The plaintiff/petitioner in the said suit falsely annexed and
relied upon on Order dated 9th October, 2023 which was not passed in the
instant suit. The plaintiff/petitioner being well aware of such fact falsely
affirmed such statements which are false.
The petitioner/plaintiff in his affidavit in reply has re-iterated the
statements made in the application for restoration. It is denied that the
answering petitioner had ever tried to annex any documents falsely or that it
was in the knowledge of the petitioner as alleged or at all. It is submitted by the
petitioner that there were two orders passed in the same day ie. 9th October,
2023 and the cause title of those two orders were also the same and for such
inadvertent mistake has been done while filing I.A. No. GA/2/2024 which
transpires from Order dated 25th September 2024 passed by Hon’ble Justice
Krishna Rao. The petitioner has also reiterated that the averments in
paragraph 6 of the application is a typographical error and has tendered
unconditional apology for this.
Heard Learned Advocate for the petitioner/plaintiff and Learned Advocate
for opposite party/defendant perused the petition filed and materials on record.
Learned Advocate for the petitioner submits that the petitioner is not
guilty of any latches or negligence and due to facts beyond control of the
plaintiff/petitioner the petitioner could not present its case before the Court.
Learned Advocate draws attention to the inspection slip dated 11.03.2024
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where the Learned Advocate for the plaintiff sought inspection of the record,
and application dated 15.03.2024 for issuance of certified copy of Order dated
9th October 2023 passed by Hon’ble Justice Krishna Rao, and order dated 7th
February2017 passed by Hon’ble Justice Arijit Banerjee Learned Advocate also
draws attention to the Order dated 25.09.2024 passed by the Hon’ble Justice
Krishna Rao where his Lordship while disposing previous restoration
application being G.A. 2 of 2024 was pleased to dispose the said application by
granting liberty to apply afresh.
Learned Advocate for the opposite party/defendant submits that the said
application has been filed on behalf a non-existent entity. It is further
submitted that as per fresh certificate of incorporation issued on 14th
September, 2010, the name of the company was changed to Fairland
Development (India) Private Limited. Learned Advocate also submits that the
petitioner has made a false statement and relied upon an order dated 9th
October, 2023 which was not passed in the instant suit.
Before proceeding to decide the material in issue it is necessary to
consider the provisions contained in Order IX Rule 3 of the Code of Civil
Procedure, as the date when the suit was dismissed for default none appeared
for either of the parties.
Rule 3 of Order IX of the Code of Civil Procedure provides as follows:
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Rule-3-Where neither party appears suit to be dismissed-Where neither
party appears when the suit is called on for hearing the Court may make an
Order that the suit be dismissed.
According to Rule 4 of Order IX where a suit is dismissed under rule-2 or
rule 3 the plaintiff may (subject to the Law of Limitation) bring a fresh suit; or
he may apply for an order to set aside the dismissal, and if he satisfies the
court, that there was sufficient cause for [such failure as is referred to in rule
2] or for his non appearance as the case may be, the Court shall make an order
setting aside the dismissal and shall appoint a day for proceeding with the suit.
Now what is ‘sufficient cause’ depends on the facts of each case.
In the instant case it is an admitted position that the matter was not
fixed for evidence of the plaintiff’s witness on the date of dismissal. Thus there
was no occasion for the plaintiff’s Officers to be present on the said day. The
plaintiff had to depend on its erstwhile Learned Advocate as is contended by
the plaintiff and the plaintiff is not an individual but a private Limited
Company. It is also an admitted position that the erstwhile Advocate-on-Record
did not appear on the dates fixed and the suit was dismissed for default. It
further appears that the plaintiff had to engage the present Advocate to cause
inspection of the case record.
As the erstwhile Learned Advocate was changed by the plaintiff and this
application is not prepared in the office of the said Learned Advocate it cannot
be stated in the petition as to the exact cause for the Learned Advocate for not
7appearing on the dates fixed. However the petitioner has stated that the
knowledge of dismissal of suit was obtained on 01.02.2024. Now in the facts
and circumstances it is necessary to consider as to whether suit should be
restored when cause for non appearance of erstwhile Learned Advocate for the
plaintiff could not be ascertained.
In this regard it is necessary to consider some judicial decisions relied
upon by Learned Advocate for the plaintiff.
In the case of Robin Thapa VS Rohit Dora reported in (2019) 7 SCC-
359 the Hon’ble Supreme Court observed as follows:
‘7. Ordinarily a litigation is based on adjudication on the merits of the
contentions of the parties. Litigation should not be terminated by default either
of the plaintiff or the defendant. The cause of Justice does require that as far
as possible adjudication be done on merits.’
In the case of Raj Krishna Pandey VS State of U.P. reported in (2009)
2 SCC 692 the Hon’ble Supreme Court observed as follows:
‘8. In our opinion, whether the applicant has made out sufficient cause
or not in the application filed, the Court is required to look at all facts pleaded
in the application. No doubt the consideration of the existence of sufficient
cause is the discretionary power with the Court but such discretion has to be
exercised on sound principles and not on mere technicalities. The approach of
the Court in such matters should be to advance the cause of justice and not
8the cause of technicalities. A case as far as possible should be decided on
merits and the party should not be deprived to get the case examined on the
merits.’
Apart from the decisions relied upon by the plaintiffs it is necessary to
consider the following judicial decision.
Dulal Chandra Ojha VS Banamali Guchait and others.
Reported in AIR-1989 Cal-91.
Ashok Raviji Vadodriya and ETC. VS Municipal Corporation of
Greater Bombay.
Reported in AIR-2004 Bombay-8.
Food Corporation of India VS Jugal Kishore Agarwal
Reported in AIR-2001 Orissa-158;
Maung Saw VS MA BWIN BYU.
Reported in AIR-1926 Rangoon.
In the case of Dulal Chandra Ojha (supra) it was observed as follows:
‘The attention of this Court is drawn to a recent decision of the Hon’ble
Supreme Court reported in AIR 1987 SC 1353 Collector Land Acquisition,
Anantanag v. Mst. Katiji. In considering the expression “sufficient cause” as
envisaged in S.5 of the Limitation Act the Hon’ble Supreme Court found that
9the legislature is adequately elastic to enable the Court to apply the law in a
meaningful manner which sub-serves the ends of justice that being the life-
purpose for the existence of the institution of Courts. It is common knowledge
that the Court has been making a justifiably liberal approach in matters
instituted in this Court. But the message does not appear to have percolated
down to all the other Courts in the hierarchy. In the instant case applying the
said test this Court finds that a liberal approach ought to have been made to
understand the sufficient cause as to the absence of the petitioner on the date
of dismissal of the case for default. However, for ends of justice an opportunity
may be given to the petitioner to contest the main case on merit.’
In the case of Ashok Rauji (supra) the Hon’ble Court observed as
follows:
‘The whole approach of the Learned Judge of the City Civil Court, in my
view, is wrong. It would not be appropriate to hold that it is the duty of litigant
to attend Court and convey the adjourned date to his advocate. I fail to
understand from where does the Learned Judge finds such practice and
procedure being followed in the City Civil Court or any other Court for the
matter. On the contrary, it is a duty of an advocate engaged for conducting a
cause on behalf of suitor to keep himself fully informed of the proceedings in
the Court and be present when his case is called out. The litigant cannot be
said to have any responsibility, legal and otherwise, after having engaged the
services of an advocate and Vakalatnama is filed in his behalf, to attend the
Court to take dates of the proceedings and convey them to his advocate,
whether Vakalatnama sets out all the terms of the agreement between the
10advocate and his client or it may be that it does not set out all such terms, it is
not the job of the client. In the trial Courts the party is expected to attend the
Court as and when his presence is required in the proceedings and/or
whenever the party is informed by his lawyer to remain present. The principle
laid down by the Supreme Court in Rafiq v. Munshilal, (1981) 2 SCC 788 :
(AIR 1981 SC 1400), relied upon by Mr. Walawalker, Learned counsel for the
appellants is sufficient enough for my guidance. The Apex Court has
categorically recorded that the obligation of the party is to select his advocate,
brief him, pay the fees demanded by him and then trust the Learned Advocate
to do the rest of the things. To go the Court to inquire as to what is happening
in the Court with regard to his matter and inform his lawyer is not part of his
job.
Relevant portion of paragraph No. 3 in the judgment of the Apex Court in
Rafiq (AIR 1981 SC 1400) (supra) reads thus:
“3. The disturbing feature of the case is that under our present adversary
legal system where the parties generally appear through their advocates, the
obligation of the parties is to select his advocate, brief him, pay the fees
demanded by him and then trust the Learned Advocate to do the rest of the
things. The party may be a villager or may belong to a rural area and may have
no knowledge of the Court’s procedure. After engaging a lawyer, the party may
remain supremely confident that the lawyer will look after his interest. At the
time of the hearing of the appeal, the personal appearance of the party is not
only not required but hardly useful. Therefore, the party having done everything
in his power to effectively participate in the proceedings can rest assured that
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he has neither to go to the High Court to inquire as to what is happening in the
High Court with regard to his appeal nor is he to act as a watching of the
advocate that the latter appears in the matter when it is listed. It is no part of
his job.
Again in Smt. Lachi Tewari v. Director of Land Records, 1984 Supp
SCC 431 : (AIR 1984 SC 41), the Apex Court reiterated this very principle. It is
thus clear that it is a duty of the lawyer to attend the proceedings and to take
dates and do job of his client. The principle laid down by the Apex Court
squarely applies to the facts of this case. If the notices of motion for restoration
of suits in the present case are not allowed, it is only the plaintiffs who would
suffer and not the advocate who did not appear or the clerk who did not note
the correct date of hearing in the diary. In the circumstances, the appellants-
plaintiffs cannot be made to suffer merely because their chosen advocate
defaulted.’
In the case of Food Corporation of India (supra) the Hon’ble Court
observed as follows:
’11. Considering the facts and circumstances of the present case in the
pari materia of the decisions noticed in the preceding paragraphs and with the
object of doing substantial justice to all the parties concerned. I, in the given
circumstances of this case hold that sufficient cause has been made out by the
appellant, which has persuaded me to disagree with the reasoning given the
Learned Court below refusing to condone the delay in filing the petition. It need
not be said that dismissing a petition on technical grounds of limitation, would
not, in any way advance the interest of justice, but admittedly would result in
12failure of justice inasmuch as the impugned order is likely to affect the State
Exchequer. It is needless to say that the paramount consideration of the Court
is to safeguard the interest of all the litigants specially when it cannot be
presumed that delay is occasioned deliberately or on account of culpable
negligence or on account of mala fides which ingredients are totally absent in
the present case. Litigants do not stand to benefit by resorting to delay. In fact,
he runs a serious risk. It is well settled law that when substantial justice and
technical considerations are pitted against each other, the cause of substantial
justice deserves to be preferred, for other side cannot claim to have vested right
for the injustice being done because of non deliberate delay.’
In the case of Maung Saw (supra) the Hon’ble Court observed as follows:
‘The present case is very similar to that of Pilasrai Laxminarayan v.
Gursondas Damodhardas in which a case, 11th on the list had been called on
before 12-30 p.m. The Learned Judges, following an earlier Allahabad case,
were of opinion “that the case was one in which, whether there was sufficient
cause or not, the Court should exercise its inherent jurisdiction to restore the
case for the ends of justice, provided the defendant was amply protected in the
matter of costs.’
That is, in my view, a correct view of the matter and I shall follow that decision.
I should mention also the case of Mg. Than v. Zainat Bibi which was
also cited before me. The facts there were different and the Judge expressly held
that they were not such as to make out a case for the exercise of the inherent
power of the Court. In this connection I would quote with approval the following
13words from the judgment of the Learned Chief Justice in the Bombay case
above cited : ” But it is difficult to see how a decision of the Judge on the facts
before him that sufficient cause has not been shown for the restoration of a suit
can provide a precedent for other Judges on a similar application. On questions
of fact or matters of discretion there can be no precedent. Each Judge is
entitled to come to the conclusion he thinks right on questions of fact and in
matters of discretion.”
On my view of the circumstances this is an eminently proper case for
restoration.’
Thus upon perusing the judicial decisions referred above it will appear
that Courts should take liberal view in considering application for restoration
even if there is delay. In the instant matter the suit is pending from 2010, thus
it is not unusual that there may be communication gap between the plaintiff
and its Learned Advocate. A party to the suit when waiting for a long period for
the suit to be decided and the suit is dismissed for default after a period of 14
years for non-appearance, of Learned Advocate and the plaintiff after obtaining
information of dismissal of suit files application for restoration, it would not be
reasonable to refuse the prayer for restoration after condoning delay even if
application for restoration is filed after the period of limitation. It is true that
Courts have power to dismiss the suit for non appearance of plaintiff but when
plaintiffs file application for restoration Courts should take a liberal approach
unless it is a very exceptional case and the case record shows gross negligence
of the plaintiff and unwillingness to proceed with the suit.
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The plaintiff has shown sufficient cause for restoring the suit although
the defendant has taken the plea of the application being filed by nonexistent
person which the plaintiff has explained in affidavit in reply.
In the facts and circumstances this Court is of the view that the
application for restoration should be allowed.
Hence let there be an order in terms of prayer (a) of the notice of motion
dated 21st day of November 2024.
Let the suit appear on 09.06.2025.
(BISWAROOP CHOWDHURY, J.)
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