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Baswantaraya Shantappa Biradar Vs. Gurappa Mallappa Gundagi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 773 of 1967
Judge
Reported inAIR1968Kant329; AIR1968Mys329; (1968)1MysLJ557
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Limitation Act, 1908 - Schedule - Article 168
AppellantBaswantaraya Shantappa Biradar
RespondentGurappa Mallappa Gundagi
Excerpt:
.....and not under the gratuity act. - (6) under rule 17 or 18 of order xli of the code of civil procedure, an appeal may be dismissed for non-prosecution or it may be well be rejected under rule 11(2) of the said order. 168) does not apply to cases like the present, which really come under section 151 of the code of civil procedure. indeed, it may well be contended that there is no period of limitation prescribed for such applications, and the question of limitation, apart from unreasonable delay, would not arise or would not be relevant in such cases. bihar state board of religious trusts, patna, air1968pat110 .(13) in the first case it would appear that the appeal was dismissed under rule 10 (2) of order xli of the code of civil procedure as the plaintiff failed to furnish.....order(1) this petition under section 115 of the code of civil procedure is filed against the order dated february 18, 1967 made by the district judge, bijapur dismissing misc. application no. 72 of 1966 filed by the petitioner seeking restoration of the appeal to file or its readmission.(2) the short question raised in this petition by the learned counsel for the petitioner is when an appeal is dismissed by the court below for non-payment of costs for preparation of the paper book, which is the article in the limitation act that applies to the application made for restoration of the appeal and what is the period of limitation within which such an application should be made?(3) the facts leading to this question may briefly be stated thus:the petitioner presented appeal no. r. a. 61 of.....
Judgment:
ORDER

(1) This petition under Section 115 of the Code of Civil Procedure is filed against the order dated February 18, 1967 made by the District Judge, Bijapur dismissing Misc. Application No. 72 of 1966 filed by the petitioner seeking restoration of the appeal to file or its readmission.

(2) The short question raised in this petition by the learned counsel for the petitioner is when an appeal is dismissed by the Court below for non-payment of costs for preparation of the paper book, which is the Article in the Limitation Act that applies to the application made for restoration of the appeal and what is the period of Limitation within which such an application should be made?

(3) The facts leading to this question may briefly be stated thus:

The petitioner presented appeal No. R. A. 61 of 1963 in the Court of the District Judge, Bijapur. That appeal was admitted and, thereafter the appellant was called upon to deposit Rs. 20/- towards the cost of preparation of paper book by an order dated November 18, 1963. However, the appellant did not deposit the amount asked for and the appeal came to be dismissed on June 3, 1964.

(4) The appellant made an application on November 28, 1966, for restoration of the appeal after a lapse of two years, five months and twenty-five days. In the application it was stated that though the notice in the darkhast application filed by the respondent for recovery of the costs of the appeal was served on him on August 16, 1966 he actually came to know of the dismissal of the appeal on November 26, 1966 only.

(5) On merit, I find that in the affidavit of the petitioner which was read over to me by the learned counsel for the petitioner, it has been stated that the costs of preparation of the paper book were, in fact, paid to his lawyer but it appears that he did not pay them and on being asked, his lawyer told the petitioner that he would make the necessary application and see that the appeal is restored to file. Whatever that may be, the fact remains that the application for restoration of the appeal to file was made on November 28, 1966. The question, therefore, is what is the article of limitation which is applicable to such an application?

(6) Under Rule 17 or 18 of Order XLI of the Code of Civil procedure, an appeal may be dismissed for non-prosecution or it may be well be rejected under Rule 11(2) of the said Order. When an appeal has been dismissed or rejected, then Rule 19 enables the appellant to make an application for re-admission of the appeal, and if the appellant proves that he was prevented by sufficient cause from appearing when the appeal was called on or hearing or from depositing the sum required, the Court shall re-admit the appeal.

(7) The period of limitation within which an application for restoration is to be made is thirty days from the date of dismissal of the appeal as prescribed by Article 122 of the Limitation At, 1963 (Act XXXVI) of 1963). The Court below took the view that Article 122 of the Limitation Act, 1963, applies to the facts of the case and dismissed the application holding that it is filed beyond the period of thirty days.

(8) The learned District Judge, in his order, while stating the facts has pointed out that the appeal was dismissed under Rule 7 in Chapter V of the Civil Manual issued by the high Court of Judicature, Bombay, Appellate Side, for the guidance of the Civil Courts and Officers subordinate to it. The rule in the Civil Circular issued by the High Court of Bombay has not the effect of the Rule made under the Code of Civil Procedure is what was held by the High Court of Bombay in Dayanand Pandurang v. Daji Narayan Nerkar, AIR 1926 Bom 548(2)=ILR 50 Bom 793. If that is so, then the dismissal of the appeal by the Court below was not either under Rule 11(2) or Rule 17, Order XLI of the Code of Civil Procedure. therefore, it must be held that the appeal was dismissed by the court below in exercise of its power under Section 151 of the Code of Civil Procedure.

(9) In somewhat similar circumstances, it is held by the High Court of Bombay in Ningappa Narasingappa v. Chandra Jakkappa, AIR 1942 Bom 198 that when the appeal was dismissed for non-payment of costs for preparation of paper book by the appellant in time, the appeal is dismissed by the court only in the exercise of its power under Section 151 of the Code of Civil Procedure. During the course of the judgment Divatia J. referred to the decision in Sonu Bai v. Shivajirao, ILR 45 Bom 648=AIR 1921 Bom 20 where it has been held:

'That O. 41, R. 19, does not exhaust the powers of the Court in a proper case to readmit an appeal or an application dismissed for default, and that it is open to the court in exercise of its inherent powers to deal with these matters under S. 151. Civil P. C. and to make an order to that effect for the ends of justice or to prevent abuse of process of the court, without any reference to the period of limitation fixed for application to re-admit appeals or to restore any other proceeding dismissed for default.' and pointing out that such case is not really one covered by the provisions of Order XLI Rule 19 of the Code of Civil Procedure stated that Court has inherent power under Section 151 of the Code of Civil Procedure to entertain the application for restoration of appeal dismissed for non-compliance of the Circular.

(10) It appears to me that in the instant case the Court has really dismissed the appeal in exercise of its power under S. 151 of the Code of Civil Procedure. If that is so, then to such a case, in my view, Article 122 of the Limitation Act, 1963, would not apply because that Article in so far appeals are concerned contemplates cases of dismissal made under any of the Rules of Order XLI of the Code of Civil Procedure relating to the dismissal of the appeal for non-prosecution. That Article cannot apply to the application for restoration of the appeal which has been dismissed by Court in exercise of its power under section 151 of the Code of Civil Procedure. In this connection, I may refer to a decision of the Calcutta High Court in the case of Biswanath Banerjee v. Amarnath Mukherjee. : AIR1962Cal110 where the facts show that the court below had dismissed the appeal for non-payment of costs of paper book and the appellant made an application for restoration of the appeal. it was held that the dismissal of the appeal by the Court was in exercise of its inherent powers under section 151 of the Code of Civil Procedure. It was pointed out in that case that in a case of that nature Article 168 of the Limitation Act, 1908 (now Article 122 of the Limitation Act, 1963) does not apply. This is what Mookerjee J observed at page 111.

'....... the above article (Art. 168) does not apply to cases like the present, which really come under section 151 of the Code of Civil Procedure....... for which and for the exercise of the inherent powers whereunder, there cannot be any period of limitation less, at any rate, than three years from the date of the impugned order.

Art 181 being the nearest Article, if any, of the Indian Limitation Act, applicable to the case. Indeed, it may well be contended that there is no period of limitation prescribed for such applications, and the question of limitation, apart from unreasonable delay, would not arise or would not be relevant in such cases.'

With very great respect, I entirely agree with the observations made by the learned Judge. In my view, in the instant case when the Court has dismissed the appeal for non-payment of costs for preparation of paper book, such dismissal is really in the exercise of its inherent power under section 151 of the Code of Civil Procedure and when an application is filed for restoration of the appeal, there is no provision in the Limitation Act prescribing the period within which such application should be made except perhaps the general Article 137. However, such an application should be made within a reasonable period. What that reasonable period is, depends upon the facts and circumstances of each case.

(11) In the instant case, as I have stated before, the application has been made two years, five months and twenty-five days after the dismissal of the appeal. From the facts of this case, I gather that the appellant was really under the impression that he having paid the costs of preparation of the a paper book to his lawyer, he must have paid them and the appeal was pending disposal in the Court and that he came to know of the dismissal of the appeal only when the darkhast was filed against him for recovery of costs of the appeal. There is no reason to doubt the bona fide belief of the appellant. If the client has really paid the costs of preparation of the paper book to his lawyer and the latter has not paid them, I do not think that the client should be made to suffer on account of the unfortunate conduct of the lawyer.

(12) However, it was contended by the learned counsel for the respondent that the case is really by Article 122 and the application for restoration of the appeal should have been filed within thirty days from the date of dismissal of the appeal. In support of that proposition, he relied on three decisions and they are (1) Sirur v. Mythili Ammal, AIR 1932 Mad 170; (2) K.P.L.S.S. Chettiyar v. Official Receiver, Ramnad AIR 1935 Rang 466 and (3) Radhanath Pathak v. Bihar State Board of Religious trusts, Patna, : AIR1968Pat110 .

(13) In the first case it would appear that the appeal was dismissed under Rule 10 (2) of Order XLI of the Code of Civil Procedure as the plaintiff failed to furnish security. Such a dismissal, in their Lordships' view came under the general description of 'want of prosecution' and, therefore, it was held that the application was really governed by Article 168. The appellant having applied for the readmission of the appeal under O. XLI, Rule 19(1) of the Code of Civil Procedure, the application clearly fell within the purview of Art. 168 of the Limitation Act, 1908. Therefore, that decision is no authority for the decision in the present case.

(14) In the second case, what was decided by the Court was that if a period of limitation is prescribed by the law of limitation, the Court cannot circumvent it by exercising its inherent power under section 151 of the Code of Civil Procedure. That decision again has no application to the facts of the present case.

(15) In the third case, it would appear that the plaintiff's suit was dismissed since de did not comply with the order of the Court requiring the plaintiff to pay process fee and written process. The Court held that the dismissal of the suit by the trial court was under Section 151 of the Code of Civil Procedure and stating that it was not necessary to decide whether the restoration application could be made under section 151 observed that whatever may be the reason for the dismissal of the suit an application for restoration of the suit has to be filed under Art. 122 of the Limitation Act within thirty days from the date of dismissal of the suit. With respect I find myself unable to agree with this view.

(16) It is to be noted that Art. 122 of the Limitation Act, 1963, combines the provisions of Article 163 of the Limitation Act, 1908 which clearly refers to the application under Order IX, Rules 4 and 9 and Order XXV. Rule 2 of the Code of Civil Procedure, and, therefore, it must be taken that the provisions of Article 122, in so far as they relate to the restoration of the suit dismissed for the reason stated therein, equally refers to the application under Order IX, Rules 4 and 9 and Order XXV, Rule 2, and therefore, an application to set aside the order of dismissal of the suit in such circumstances must be made within thirty days from the date of dismissal thereof. But, if the suit is dismissed under Section 151, then Article 122 would have no application because, when a Court have no application because, when a Court makes an order under Section 151, then Article 122 would have no application because, when a Court makes an order under section 151, then it is implicit that such a Court has the power to entertain an application to set aside its order made under section 151. The power of the Court, in such circumstances, cannot be held to be limited by time, at any rate, less than three years from the date of the impugned order, Article 137 being the nearest Article to make an order which may be necessary for the ends of justice or to prevent abuse of the process of the Court. That being so, no question of circumvention of any provisions of the law of Limitation would arise.

(17) The learned Judges have applied the provisions of Article 122 even to an application made to set aside an order of dismissal of a suit made under Section 151. With respect there does not seem to be any good reason to extend the provisions of Article 122 to the application made to set aside the order of dismissal of the suit under Section 151. In my opinion, the view taken by the High Court of Calcutta in : AIR1962Cal110 referred to above, seems to be a better view to take.

(18) It was then contended by Mr. Bhat for the respondent that this is really not a case where this Court should exercise its power under section 115 of the Code of Civil Procedure. But if the Court has acted illegally or with material irregularity in the exercise of its jurisdiction, then this Court can exercise its power under section 115 of the Code of Civil Procedure in the interests of justice.

(19) For the reasons stated above, I set aside the order of the District Judge, Bijapur, dismissing the application of the petitioner for restoration of the appeal to file; allow his application and restore the appeal to file. The court below will now proceed to hear and dispose of the appeal on merits.

(20) In the circumstances, there will be no order as to costs of this application.

(21) Petition allowed


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