' This revision petition is directed against order dated 28-5-1980 passed by the Sub-Judge, Dhirkote whereby the suit of the plaintiff-respondent was restored for its trial according to law. The counsel for the parties were heard.
2. During the course of the suit it so happened that the trial Court ordered the plaintiff through the counsel for the counsel of the appellant to make a deposit of proclamation fee so as to get a notice published in some newspaper for information of the defendant-petitioner in order to attend the Court to put up his defence. But no advertisement fee could be deposited by the plaintiff as was ordered by the trial Court and so the suit was dismissed in disobedience of the order of the trial Court and also for non-appearance of the plaintiff or anybody else authorised in this behalf (appearance) by her.
3. The order of dismissal of the suit was taken by the counsel of the plaintiff-respondent as having been passed by the trial Court under Order XVII, rule 3, C.P.C. And so an appeal was preferred to the District Judge which was accepted and the suit was restored for its trial according to law. The order of dismissal passed by the Sub-Judge did not speak of the provisions of law under which it was dismissed and so the controversy has arisen between the parties with regard to the application of provision of law applicable in relation to the dismissal of the suit. Against the order of the District Judge an appeal was preferred to the High Court contending that appeal before the District Judge was not competent. Mr. Justice Raja Muhammad Khurshid Khan a Judge in the High Court (as he then was) agreeing with the contention of the counsel of the petitioner accepted the appeal thereby holding that the appeal before the District Judge was not competent and it was further held that the proper remedy for the plaintiff was to apply for setting aside the order of dismissal under Order IX, rule 4, C.P.C. And at the same time it was also remarked that the plaintiff- respondent "is at liberty to have recourse in a legal way to get the impugned order vacated".
Consequently an application for setting aside the order of dismissal was filed by the plaintiff- respondent before the trial Court praying therein for computation and exclusion of the time spent in the civil proceedings before the District Judge and the High Court towards limitation as well.
' The learned Sub-Judge disposed of the application after hearing the parties and set aside the order of the dismissal of the suit.
4. The learned counsel for the petitioner has contended that a separate application was required to be made by the plaintiff-respondent fee computation and extension of the time for the period of limitation under section 14 of the Limitation Act which could have only then attracted then an without doing so no condonation of delay could be allowed by the trial Court. I am unable to agree with them because the very application for setting aside the order of dismissal contained a detailed and well-founded prayer for computation of the period spent in civil proceedings before the District Judge and the High Court. Section 14 of the Limitation Act is a mandatory provision of law. Its benefits can be given to a party concerned on a mere reference to the subject-matter contained therein which is sufficient for the Court concerned the same as being duty bound, even though the section is not specifically mentioned by the party concerned and there is also no separate application for the purpose. Here the plaintiff-respondent had been pursuing the proceedings through her counsel before the District Judge and in the High Court and they were doing so under a bona fide mistake of law if at all. One may be able to argue that the order of dismissal of the suit was partly made under Order XVII, rule 3, C.P.C. When the plaintiff was placed in a very difficult situation by the order of dismissal of the suit either she was to make an application under Order IX, rule 4 or file an appeal or review as the case may be. The effect of section 14 of the Limitation Act is to render the impugned application filed in the trial Court as if it was filed within the period prescribed for limitation after the civil proceedings came to an end in the High Court and period of limitation is to be reckoned afresh.
5. The case was not fixed for hearing on the day when it was dismissed in default etc. The counsel of the plaintiff in the Court of first instance was away from it without informing the plaintiff due to illness of his father. Moreover, the proclamation fee was also deposited on the very day, when the suit was dismissed. The Sub-Judge allowed the deposit of the money to be made and which was made accordingly by the clerk of the counsel and the Sub-Judge still failed to apply his mind to the case and it was mainly due to the fact that the interlocutory order was usually written by his clerk and most probably beyond his supervision and behind his back because they do not appear to be properly written on the dictation of the Sub-Judge and are found very poorly written.
6. In the circumstances the appeal was accepted by the District Judge though it was declared incompetent by the High Court. Again the Sub-Judge himself took the matter in hand on an application filed by the plaintiff which was dealt with accordingly and in conclusion it was accepted. And I also think for the reasons above it was rightly accepted. Anything done against the provisions of law in the instant case can also be looked into under section 151 of C.P.C. And I do adhere to it. That being so, this revision petition is dismissed and the orders dismissing the suit of the plaintiff are set aside and the case is allowed to proceed according to law as was ordered by the trial Court by acceptance of the impugned application. The case has become very old by now.
The Sub-Judge will do well to expedite its disposal in the interest of justice. In the result, this application having been dismissed the counsel of the parties are directed .To inform their clients to appear before the Court of Sub-Judge, Dhirkote, on 29-2-1981 in order to hear about further proceedings to be taken by the trial Court.