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Rikhab Dass Vs. Smt. Chandro and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 120 of 1967
Judge
Reported inAIR1971All234
ActsLimitation Act, 1908 - Sections 3(1), 5 and 14
AppellantRikhab Dass
RespondentSmt. Chandro and ors.
Advocates:A. Banerji, Adv.
DispositionApplication dismissed
Excerpt:
.....date of order of return of plaint for its presentation in proper court and date of such presentations - exception - reasonable time spent for going to place of proper court. - - the learned district judge found that although the order returning the plaint for presentation to proper court had been passed by the munsif on the 6th march, 1965 the plaintiff did not file the plaint in the court of small causes until march 23, 1965. in the opinion of the learned district judge the plaintiff did not sufficiently account for the delay in filing the plaint on march 23, 1965. he observed that the affidavit sworn by the plaintiff to the effect that he was unable on account of illness to take back the plaint for presentation to the proper court earlier than march 23, 1965 was unconvincing. as..........back the plaint of the suit and filed it in the small cause court on the 23rd march, 1965.2. the judge, small cause court found that the suit was barred by time and he dismissed it by his order dated 29-4-66. the plaintiff thereupon filed a petition in revision before the learned district judge, but it proved futile. the learned district judge found that although the order returning the plaint for presentation to proper court had been passed by the munsif on the 6th march, 1965 the plaintiff did not file the plaint in the court of small causes until march 23, 1965. in the opinion of the learned district judge the plaintiff did not sufficiently account for the delay in filing the plaint on march 23, 1965. he observed that the affidavit sworn by the plaintiff to the effect that he was.....
Judgment:
ORDER

T.P. Mukerjee, J.

1. This is an application in revision by a plaintiff. The material facts are that the plaintiff-applicant had filed a suit against the opposite party for recovery of Rs. 250/- on the basis of a pronote dated 30th April, 1961. The suit was initially filed in the Panchayati Adalat and it was decreed by that Court. The defendant-opposite party filed an application in revision before the learned Munsif under Section 89 of the Pan-chayat Raj Act (U. P. Act No. 26 of 1947) against the decree passed by the Panchayati Adalat. The learned Munsif found that the Panchayati Adalat had no jurisdiction to entertain the suit and he directed that the plaint be returned to the plaintiff for presentation to the proper court. The order of the learned Munsif directing return of the plaint was made on the 6th March, 1965. The plaintiff took back the plaint of the suit and filed it in the Small Cause Court on the 23rd March, 1965.

2. The Judge, Small Cause Court found that the suit was barred by time and he dismissed it by his order dated 29-4-66. The plaintiff thereupon filed a petition in revision before the learned District Judge, but it proved futile. The learned District Judge found that although the order returning the plaint for presentation to proper court had been passed by the Munsif on the 6th March, 1965 the plaintiff did not file the plaint in the court of small causes until March 23, 1965. In the opinion of the learned District Judge the plaintiff did not sufficiently account for the delay in filing the plaint on March 23, 1965. He observed that the affidavit sworn by the plaintiff to the effect that he was unable on account of illness to take back the plaint for presentation to the proper Court earlier than March 23, 1965 was unconvincing. He therefore, dismissed the application in revision by his order dated 24th November, 1966. Hence this application.

3. Sri A. Banerji appearing for the applicant' contends that as there was no counter-affidavit controverting the averments made by the plaintiff in his affidavit regarding his illness, it was incumbent on the part of the learned District Judge to have accepted the same and condoned the delay. He argued that the learned District Judge exercised his jurisdiction with material irregularity by rejecting the affidavit sworn by the plaintiff. The learned counsel for the applicant relied on Sections 5 and 14 of the Limitation Act in support of his contention that the delay in presentation of the plaint of the suit to proper court should have been condoned by the learned District Judge particularly when there was no counter-affidavit sworn by the defendant-opposite party in rebuttal of the statements in the plaintiff's affidavit.

4. The learned District Judge it appears, has given the plaintiff the benefit of Section 14 of the Limitation Act and excluded the period from the 20th April, 1964 to the 6th March, 1965 during which the plaintiff had been prosecuting the suit bona fide in a wrong court with due diligence. The learned District Judge however, observed that the plaintiff should have accounted for satisfactorily each and every day from the 6th of March, 1965 when the plaint of the suit was ordered to be returned until the 23rd of March, 1965 when it was filed in the Small Cause Court. As already stated, the District Judge held that the plaintiff had failed to explain the delay for the period between the 6th March, 1965 and the 23rd March, 1965.

5. In my opinion, the contention of the learned counsel for the applicant that the delay should have been condoned under section 5 of the Limitation Act is untenable. Even if it is assumed that the plaintiff was really incapacitated by reason of his illness from taking back the plaint from the court of the learned Munsiff on 6-3-1965 or shortly thereafter, the benefit of Section 5 of the Limitation Act would not be available to him. Section 5 of the Limitation Act runs as follows:

'Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.'

It would be noticed that Section 5 is limited in its application to an 'appeal' or an 'application' (other than an application under Order 21, Civil P. C-). Section 5 does not apply in terms to extend the limitation prescribed for institution of suits in the Schedule to the Act. Sri Banerji referred to the provisions of Sub-section (1) of Section 3 of the Act which says:

'Subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.'

The learned counsel for the applicant contended that the language of Sub-section (1) of Section 3 makes it clear that suits, as much as appeals and applications, are subject to the provisions contained in Sections 4 to 24, including Section 5. I do not think, however, that such a construction follows from the language of Section 3(1). As I have already pointed out Section 5 is quite explicit in its terms and it excludes suits from its ambit. Section 5 is restricted in its application to appeals and applications (other than applications made under any of the provisions of Order 21, Civil P. C.). The true construction of sub-section (1) of Section 3 is that a suit, appeal or application if time-barred, shall be dismissed after the prescribed period, even though limitation has not been pleaded in defence, except when such limitation is extended by the provisions of Sections 4 to 24 (inclusive) applicable to such suit, appeal or application, as the case may be. Section 3(1) does not extend the operation of Section 5 of the Limitation Act to suits also. Even if the plea of the plaintiff that he was ill during the period from 6-3-1965 and, therefore, was not in a position to take the plaint from the court of the Munsif for presentation to the Small Cause Court is accepted. Section 5 would not apply to save limitation.

6. Under Section 14 of the Limitation Act only the period during which the plaintiff prosecuted the suit bona fide in a wrong court with due diligence, is liable to be excluded. The learned District Judge has rightly held that under this section, the plaintiff-applicant was entitled to exclusion of time until 6-3-65 when the Munsif directed return of the plaint for presentation to proper court. It was incumbent on the plaintiff to file the plaint in the Small Cause Court on 6-3-65. If, however, the Small Cause Court was situate at a different place, and it was not physically possible to present the plaint there on 6-3-65 the plaintiff would be entitled only to exclusion of the period reasonably required for the purpose of the journey. In no case, the plaintiff can plead illness to justify presentation of the plaint to the Small Cause Court on 23-3-65. The learned Small Cause Court Judge has not believed the plea of illness but even if the plaintiff had been actually ill his personal presence was not required in the Small Cause Court for institution of the suit. The delay cannot, therefore, be condoned under Section 14 of the Limitation Act and, as already noted, Section 5 is not applicable to suits.

The application in revision is, therefore, dismissed. As, however, the opposite parties have not put in an appearance in this revision, I make no order as to costs.


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