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Vishwa Nath Vs. Smt. Maharaji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1052 of 1976
Judge
Reported inAIR1977All459
ActsCode of Civil Procedure (CPC) - Order 9, Rules 9 and 13 - Order 41, Rule 22(1); Limitation Act - Sections 5
AppellantVishwa Nath
RespondentSmt. Maharaji and anr.
Appellant AdvocateK.C. Srivastava, Adv.
Respondent AdvocateS.K. Verma, Adv.
DispositionPetition dismissed
Excerpt:
civil - grant of time - order 41 rule 22 (1) of code of civil procedure,1908 - court grant further time without taking evidence - held, the order cannot be said to be without jurisdiction. - - bhutnath, (air 1964 sc 1336), where it has been clearly laid down that there is a difference between section 3 and section 5 of the indian limitation act......directed against an order whereby the lower appellate court extended the period for the filing of cross-objection by the plaintiff-respondent in the said court. the order under revision shows that on 1st march, 1974, the notice of the appeal was served by affixation at the plaintiff's residence. she filed the cross-objection on april. 15, 1974 and from the date of the affixation of notice more than 30 days had passed and, therefore, the cross-objection was not within the period laid down in order 41. rule 22 c. p. c. however, the lower appellate court extended the benefit under the said provision and allowed the cross-objection to be treated within time by extending the period for the filing thereof up to april 15, 1974. the defendant fell aggrieved with the said order and has come up.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This revision is directed against an order whereby the lower appellate court extended the period for the filing of cross-objection by the plaintiff-respondent in the said court. The order under revision shows that on 1st March, 1974, the notice of the appeal was served by affixation at the plaintiff's residence. She filed the cross-objection on April. 15, 1974 and from the date of the affixation of notice more than 30 days had passed and, therefore, the cross-objection was not within the period laid down in Order 41. Rule 22 C. P. C. However, the lower appellate court extended the benefit under the said provision and allowed the cross-objection to be treated within time by extending the period for the filing thereof up to April 15, 1974. The defendant fell aggrieved with the said order and has come up before me in the instant revision and in support thereof I have heard Shri K.C. Srivastava, learned counsel for the applicant. Shri S.K. Verma, learned counsel for the opposite parties, has been heard in opposition. It has been contended in support of the revision that the order under revision is not based on any evidence and is conjectural. In my opinion, this contention is not correct. It is to be seen that the court's power under Order 41 Rule 22 is very wide. It is not even hedged in by such considerations as find place in Order 9, Rule 9 or Order 9 Rule 13 C. P. C., or in Section 5 of the Indian Limitation Act, The language used in Order 41, Rule 22 is 'or within such further lime as the appellate court may see fit to allow.' It is obvious that the court had a discretion in the matter and the discretion has been exercised on the ground that the service in the said case was by affixation and not by personal service of the notice. In my opinion, in a situation where the court has been given such a wide discretion as is given by the aforesaid provision contained in Order 41. Rule 22 C. P. C., the exercise of that discretion is completely within the jurisdiction of the court concerned and the said exercise does not give rise to any question of jurisdiction. In this view of the mailer, I have no jurisdiction to interfere under Section 115 C. P. C. In this connection attention may be drawn to M. L. & B. Corporation v. Bhutnath, (AIR 1964 SC 1336), where it has been clearly laid down that there is a difference between Section 3 and Section 5 of the Indian Limitation Act. Whereas a question of jurisdiction is raised by an order under Section 8, no such question is raised when a court passed an order under Section 5 of the Limitation Act holding that sufficient cause has or has not been made out for condoning the delay.

2. The revision fails and is hereby dismissed but in the circumstances I shall make no order as to costs.


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