P.N. KHANNA., J.

( 1 ) THIS appeal is directed against the order dated April 3, 1973 of the learned

single Judge, by which he dismissed with costs the appellants application under

Rules 4 and 9 of order 9 and section 151 of the Code of Civil Procedure, praying for

a review of the order dated January 17, 1973 dismissing the appellants suit and for

the restoration and proceeding with the suit.

( 2 ) THE appellant filed his suit on November 24,1969. On July 27 1972 Mr. S. N.

Kumar, Advocate, appeared in court and stated that the brief had been taken away

from him by his client. He, therefore, asked for permission to withdraw from the

case. This prayer was granted by R. Sachar. and Mr. Kumar was allowed to

withdraw. As the appellant was no longer represented by a counsel, notice was

ordered to be issued to him for August 10, 1972. Service, however, could not be

effected on the appellant for one reason or the other till on October 19, 1972, on

which date the appellant appeared in court. The case was adjourned to January 17,

1973 for the remaining evidence. It was made clear in the order that no further

opportunity will be granted to the appellant on any account as numerous

adjournments had been granted to him earlier for the production of his evidence.

on October 27, 1972. Mr. S. N. Kumar again appeared in court on behalf of the

appellant with an application, IA 1681 of 1972, praying for return of certain

documents. He again out in appearance on November 30, 1972 when this

application was allowed. The case was placed before the Deputy Registrar on

December 6, 1972 for scrutiny but no one appeared on that day on behalf of the

appellant. The counsel for the defendant was, however, present. On January 17,

1973 Mr. S. N. Kumar again appeared on behalf of the appellant, but stated that he

had no instructions to proceed with the suit. The appellant himself was not present.

The learned single Judge passed the following order :"the counsel for the plaintiff

says that he has no instructions to proceed with the suit. He wishes to withdraw

from the case. The plaintiff is not present. No evidence has been summoned. The

suit is, therefore, dismissed for non-prosecution. "

( 3 ) ON February 16, 1973 an application under order 9 Rules 4 and 9 section 151

of the Code of Civil procedure, praying for review of the order dated January 17,

1973 and for restoration of the suit, was made. which as noticed above, was

dismissed by the learned single Judge by his order dated April 3, 1973. The present

appeal is against this order of the learned Judge.

( 4 ) A preliminary objection was raised by Mr. A. C. Gulati, appealing on behalf of

the respondent to the affect that the appeal was bar red by time. It was explained

that the impugned order is dated April 3, 1973. The application for certified copy of

the said order was filed on May 2, 1973. The said copy was ready and delivered on

May 16, 1973. The appeal was filed on May 17, 1973, which was the last date for

filing it. The appeal was, therefore, in time. when originally filed.

( 5 ) ON May 26, 1973, the office of this court raised an objection that the copy of

the impugned order was insufficiently stamped. The office suggested that the appeal

be returned to be refilled within a week. On the same day, the said office note was

put up before the Deputy Registrar, who merely initialed the same. It may be

noticed that May 27, 1973 was a Sunday and the court closed for summer vacation

with effect from Monday, the 28th May, 1973 to Saturday, the 7th July, 1973. The

office of the court, however, remained open during this vacation and continued to

receive from the parties or persons such petitions and other documents as they

choose to present. Two judges, as usual, were nominated to sit, as vacation Judges,

during these vacation to hear urgent civil and criminal matters only. No other

regular matter was to be heard. In the roster of sitting of the vacation Judges, it

was specifically mentioned that - limitation will not run for purposes of institution of

civil and criminal cases during vacation. "

( 6 ) RESUMING the narration of events concerning the progress of this appeal, the

memorandum of appeal was taken back by the clerk of the appellants counsel on

June 14, 1973. On June 16, 1973 the memorandum of appeal was refiled after

making up the deficiency in court fee and removing the office objection. The office

again suggested on July, 5, 1973 the return of the appeal on account of certain

other objections for refiling within a week. It was also mentioned this time, that the

appeal had become barred by time due to the reason that it had not been properly

filed. The counsel was advised to file an application for condonation of delay for

payment of court fees on the copy of the judgment. The office note was again

initialed by the Deputy Registrar. The appeal was then returned and refiled on July

26, 1973 after complying with the office objection and with a note that there was no

necessity for filing the application for condonation of delay. A request was made

that the appeal as it was, may be placed before the Court. The appeal then came up

for admission before the court on August 23, 1973. It was duly admitted and Mr. A.

C. Gulati appearing on behalf of the respondent, accepted notice of the appeal. He

did not raise any objection about the alleged delay in refiling the appeal.

( 7 ) THE contention of Mr. Gulati now is that the appeal having been ordered by the

Deputy Registrar to be returned on May 26, 1973 was required to be refiled within a

week. As the appeal was actually refiled on June 16, 1973, it was beyond the time

given by the office and was, therefore, barred by time. He REFERRED TO to rule 5

of Chapter I-A of Volume V of the Rules and Orders of the Punjab High Court, which

are applicable to this court. The said rule reads as follows:"5. (1) The Deputy

Registrar may return for amendment and refiling within a time not exceeding 10

days at a time and 40 days in the aggregate, to be fixed by him, any memorandum

of appeal for the reason specified in Order XLI, Rule 3, Civil Procedure Code. (2) If

the memorandum of appeal is not amended within the time allowed by the Deputy

Registrar under sub-rule (1) it shall be listed for orders before the Court. "

( 8 ) MR. Gulati contended that the rules have statutory force. There is no dispute

that these rules have been made under the rule making power conferred on the

High Court by statute (Letters Patent of the Lahore High Court which applied to the

Punjab High Court and later made applicable to Delhi High Court and Government of

India Act, the Constitution of India and the Delhi High Court Act ). These rules,

therefore, have the same force as the statute itself. In this case, although the

Deputy Registrar himself did not fix the time for refiling, his initialing the office note

suggesting the return of the appeal for the purpose of being refiled within a week

can be taken to be his adopting the said suggestion as his own order. The appeal,

therefore, was required to be refiled within a week after it was returned. It was

necessary for the appellant to refile the appeal within the time fixed by the Deputy

Registrar.

( 9 ) AS the appeal was actually returned on June 14, 1973 and was refiled on June

16, 1973, the refiling was done within the time prescribed. If the memorandum of

appeal is not amended and refiled within the time allowed by the Deputy Registrar;

it does not become liable to dismissal automatically. It has to be listed for orders

before the court in accordance with Rule 5 (2) reproduced above. This necessarily

implies that the court can in its discretion condone the delay if there is any. The

present appeal was actually admitted on August 23, 1973 when Mr. A. C. Gulati, the

learned counsel for the respondent was also present. No objection was raised by

him regarding the alleged delay. The objection must be deemed to have been

waived. By ordering issuance of notice, the court must be deemed to have

condoned the delay, if any.

( 10 ) APART from the above, May 26, 1973, when the order for the return of the

memorandum of appeal was passed, was a date on which the court was closed for

the summer vacation. The court continued to remain closed throughout and even on

June 16, 1973, it was closed when the memorandum of appeal was refiled. Under

section 4 of the limitation Act) 1963, where the prescribed period expires on a day

when the court is closed, the suit, appeal or application may be instituted, preferred

TO or made on the date when the court reopens. The opening of the office during

the vacation will not make any difference, because the court was closed. As noticed

earlier, even the roster of vacation Judges, specifically mentioned that limitation will

not run for instituting the appeals during the vacation. The appeal, therefore, could

be refiled even on the opening of the court after the vacation. It was, therefore,

filed within time.

( 11 ) IMMEDIATELY after the objection regarding limitation was raised by Mr. Gulati

at the hearing of the appeal, an application was filed under section 149 read with

section 151 of the Code of Civil Procedure and section 5 of the Limitation Act,

praying that the time for making good the deficiency in court fee on the copy of the

impugned order may be extended and the delay in filing the appeal, if any, be

condoned. In view of our observations already made, the question of delay does not

raise. In any case, we are of the view that in the circumstances mentioned above, it

was a fit case where the delay, it any, would have been condoned, if it, was

required to be done. The preliminary objection, accordingly, has no force and is

overruled.

( 12 ) ON merits, the case of the appellant is that he wrongly noted the next date as

January 19, 1973 instead of January 17, 1973. His counsel, Mr. S. N. Kumar, is also

said to have noted in his diary January 19, 1973 as the next date in the case. In

order to support this contention, an affidavit of Mr. S. N. Kumar was filed, wherein

he stated on solemn affirmation that at the time of handing over the file to him, Mr.

R. B. Lal, the managing Director of the appellant company, informed him that the

matter was fixed for January 19, 1973, which accordingly was noted by his clerk in

the diary. Affidavits of Mr. C. S. Aggarwal, Advocate, and Mr. V. K. Verma, Chartered

Accountant, have also been filed stating that they were required by Mr. R. B. Lal, to

attend the court on January 19, 1973 in order to make their statements in evidence

in the case. No rebuttal affidavit was filed on behalf of the respondent.

( 13 ) THE learned single Judge, however, noticed that the appellant had not been

prosecuting the suit diligently in the past. As appears from the narration of events

showing the progress of the suit given in an earlier part of this judgment, Mr. S. N.

Kumar had asked for and been given the permission to withdraw from the case on

July 26, 1972. Mr. S. N. Kumar, however, appears to have been re-engaged by the

appellant especially as he appeared before the court on October 27, 1972 and on

November 30, 1972. He made an application on behalf of the appellant for the

return of certain documents and got the permission of the court for the said return.

On January 17, 1973 Mr. Kumar was again present and stated that he had no

instructions to proceed with the suit and expressed a desire to withdraw from the

suit. No permission was given to him to withdraw. The learned single Judge appears

to have been greatly influenced by the fact that Mr. Kumar informed Mr. R. B. Lal,

on January 18, 1973 that the suit has been dismissed on January 17, 1973, but the

application for restoration was not made immediately thereafter and further that Mr.

S. N. Kumar did not explain in his affidavit as to why he did not bring to the notice

of the court on January 17, 1973 that the date in his diary was noted as January 19,

1973 and that it was for that reason that the appellants witnesses were not present

on that date.

( 14 ) IT is mentioned in the order under appeal that a request was made on behalf

of the appellant to afford to him an opportunity to lead evidence in respect of the

application for restoration especially as the affidavit of Mr. Kumar had been

considered to be insufficient. It appears to us that it was necessary to afford an

opportunity to the appellant to produce Mr. Kumar or other evidence in order to

explain the omission on his part to bring to the notice of the court on January 17,

1973, the wrong noting in his diary. After all, an affidavit of Mr. Kumar was on the

file saying that the next date in his dairy was noted as January 19, 1973. If this was

so and January 17, 1973 was not mentioned in his diary as the next date for

evidence and he had appeared in court merely because he had noticed the case in

the daily cause list, as was urged by Mr. Madan Bhatia, the learned counsel who

appeared for the appellant, then we think it was a case where the appellant should

have been given a chance to have the order of dismissal of his suit set aside and to

have his suit restored. Wrong noting in the counsels diary has been considered to

be a sufficient and bona fide cause for non-appearance of the plaintiff when the suit

was called on for hearing; (see Fazal Ilahi v. Mohd. Ismail Khan. AIR 1929 Lahore

(29 ).

( 15 ) MR. Gulati has laid great emphasis on the past conduct of the appellant

during the progress of the suit, which weighed heavily against the appellant with the

learned single Judge. Another circumstance on which Mr. Gulati laid great emphasis

was the delay in filing the application for restoration. It is, however, not necessary

to go into the various authorities cited by him in this respect, as no hard and fast

rules can be laid. If the application was within time and the court was satisfied that

there was sufficient cause for non-appearance of the plaintiff when the case was

called on for hearing, the court under Rule 9 of Order 9 of the Code of Civil

Procedure had to make an order setting aside the dismissal upon such terms as it

may have thought fit. If, however, the evidence led before the court was such that

probabilities on either side were equally balanced or that a doubt was still left about

the sufficiency of the cause for the non-appearance of the plaintiff, then the past

conduct of the plaintiff and/or the delay in his filing the application might have

assumed relevance and might have been considered by and assisted the court in

coming to a conclusion. Unless this happened, the past conduct during the progress

of the suit or delay in filing the application, cannot in our opinion be given such

importance as to be the only factor to be considered for deciding the application.

( 16 ) IN this case, the uncontroverted affidavit of Mr. Kumar coupled with the

affidavits of Mr. C. S. Aggarwal and Mr. V. K. Verma, cannot be easily ignored. The

appellant made a request for an opportunity to lead evidence to explain the

discrepancy in Mr. Kumars affidavit. This opportunity should have been afforded. It

is only after considering this evidence, that the court, if not satisfied, would have

been justified in ordering dismissal of the application. If the evidence produced left

some doubt in the mind of the court, then the application could still be dismissed on

the basis of the past conduct of the appellant. But, if the court was satisfied from

the evidence produced that there was sufficient cause for the non-appearance of the

plaintiff, when the suit was called on for hearing, then the court ought to have made

an order setting aside the dismissal. As the opportunity for producing evidence was

not given the order under appeal cannot be maintained.

( 17 ) MR. Gulati then contended that the order under appeal was not an order

under Order 9 Rule 9 of the Code of Civil Procedure, but was an order under Rules 2

and 3 of Order 17 of the Code and was, therefore, not appealable as such. A regular

appeal should have been filed, according to him, against the judgment by which the

plaintiffs claim was negatived. Mr. Madan Bhatia, the learned counsel for the

appellant on the other hand, submitted that the order appealed against was not a

judgment, as it was not a statement of the grounds of the decree or order. The

order was made because the counsel expressed a desire to withdraw and the

plaintiff was not present in person. It was, therefore, an order under Rule 8 of Order

9. We do not think it necessary to go into this question. Mr. Gulati himself

considered the order dated January 17, 1973, to be an order under Rule 8 ; and that

is why he did not urge this objection against the maintainability of the application

before the court. The learned single Judge himself regarded his order of dismissal of

suit as an order under Order 9 Rule 8, Civil Procedure Code and, therefore, did not

dismiss the application for the restoration of the suit, on the ground of its nonmaintainability. It is true that Mr. Kumar had asked for permission to withdraw,

which permission was not granted. In his presence the suit could not be dismissed

under Rule 8. But that is a ground to hold that the said order is had and cannot be

sustained. It does not mean that the said order be now converted into an order

under Order 17 Rules 2 and 3 of the Code of Civil Procedure, which was neither in

the contemplation of the parties nor of the court. We do not, therefore, think that

this objection by the learned counsel has any justification.

( 18 ) WE accordingly accept this appeal and set aside the order of the learned

single Judge dismissing the application for restoration of the suit. The application is

remanded. The learned single Judge will afford to the appellant opportunity to lead

evidence in support of his application in order to explain the affidavits already filed

in court and then decide the said application in accordance with law.

( 19 ) MR. Gulati, the learned counsel for the respondent, urged that the appeal be

accepted only after imposing terms on the appellant. This matter is left to the

learned single Judge. For, if after recording evidence, the learned Judge is satisfied

that there was sufficient cause for the non-appearance of the appellant when the

suit was called on for hearing and he makes an order setting aside the dismissal, he

may impose such terms as to costs or otherwise as he may think fit. The Parties are

directed to appear before the Deputy Registrar on 12-11-73, when dates for

appearance in court shall be fixed.

( 20 ) THERE shall, however, be no order as to costs of this appeal.