Presence on the Filing Date Cannot Be Sole Ground to Reject Condonation of Delay Application

The appellants’ suit was dismissed for default on June 07, 2011, when their advocate had to attend to a medical emergency involving a relative and failed to appear.

An application for restoration under Order IX Rule 9 of the Code of Civil Procedure (CPC) was filed on July 22, 2011, along with an application for condonation of delay of approximately 14 days.

The appellants cited two primary reasons for the delay: the absence of appellant no. 2 from Kolkata due to professional work and a subsequent change of advocate.

The Trial Court dismissed the condonation application, reasoning that appellant no. 2 was present in Kolkata on the date of filing (recorded in his workplace register) and that no fresh Vakalatnama was filed for the new advocate.

1. Whether the Trial Court erred in dismissing the application for condonation of delay by relying on facts extraneous to the period of limitation.

2. Whether the lack of a fresh Vakalatnama is a germane ground for dismissing an application for condonation of delay.

Section 5 of the Limitation Act, 1963, regarding the condonation of delay upon showing "sufficient cause," and Order IX Rule 9 of the Code of Civil Procedure, 1908, which provides for the restoration of a suit dismissed for a plaintiff's non-appearance.

The explanation for delay must focus on the period between the expiry of limitation and the date of filing.

Procedural technicalities, such as the filing of a Vakalatnama, should not override substantive justice if they are not the actual premise of the delay.

The High Court found the Trial Court’s reasoning "perverse" and based on "extraneous" factors.

The Bench noted that the Trial Court focused on the presence of appellant no. 2 in Kolkata on the actual day the application was filed (July 22, 2011); however, his presence on that day was a prerequisite for filing and did not disprove his absence during the critical period between July 06 and July 21.

There was no evidence produced by the respondent to show the appellant was in town during the actual period of delay.

The High Court held that the failure to file a new Vakalatnama was irrelevant because the change of advocate was not the primary ground cited for the delay.

The Court condoned the delay in filing the restoration application and directed the Trial Judge to decide Miscellaneous Case No. 502 of 2011 (the Order IX Rule 9 application) on its merits after hearing both sides.

CAN 1 of 2026 was allowed to substitute the deceased respondent’s heir, and no order as to costs was made.