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Eliajar Bagh Vs. Dayanidhi Gonda - Court Judgment

LegalCrystal Citation
SubjectCriminal;Limitation
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 46 of 1968
Judge
Reported in1971CriLJ961
ActsLimitation Act, 1963 - Sections 14
AppellantEliajar Bagh
RespondentDayanidhi Gonda
Appellant AdvocateR.C. Misra, Adv.
Respondent AdvocateY.S.N. Murty, Adv.
DispositionRevision dismissed
Excerpt:
.....amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory..........under section 12 of the limitation act, as the petition for the copies was filed beyond the period of limitation which started running from 6-3-67, the date on which the trial court pronounced its order; and that the period from 20-1-68 till 31-1-68 was also not explained satisfactorily by the petitioner; and that the petitioner was not entitled to any relief as he did not file the petition under section 5 of the limitation act till 8-5-70 though the stamp reporter pointed out the inordinate delay of 304 days as early as 5-2-68, and this court by its orders dated 9-2-68 and 5-4-68 took up the question of limitation twice and ultimately left the matter to be considered at the time of hearing. it was further contended by mr. murty that the order sought to be revised, beine the order.....
Judgment:
ORDER

S. Acharya, J.

1. This revision is by the unsuccessful second party in a proceeding under Section 145, Cr. P. C.

2. The dispute is in respect of 3-04 acres bearing plot No. 183 appertaining to khata No. 143 of village Umiri locally known as Ganda Bhumi alias Gobhar Bhumi, and the said land stands recorded as Ganda service in favour of Sonia Barik,. late father of Dayanidhi Gonda who was the first party in the trial court and the opposite party in this revision. The proceeding was initiated by PayanidhiGanda on the allegation that he was in peaceful possession of the above mentioned land and had grown the crop on the land, but the petitioner, second party in the trial court, was trying to disturb his possession by alleging that he got settlement of the land on 23-10-66. The petitioner alleged in his written statement that he was possessing the land as mortgagee from 1959 till 1965 and thereafter the Tahsildar Jeypore, assigned the said land in his favour on 21-10-65 in M. C. No. 102/62 and assessed annual rent at Rs. 8.65 P. He accordingly contended that he was in possession of the land in his own right on, payment of rent since 1965 and it was he who grew the crop on the said land. He alleged that after he reaped a portion of the crop grown by him on the said land, the first party with the aid of a large number of labourers and relatives forcibly cut and removed a portion of the paddy crop from the said land. He accordingly asserted possession over the said land.

3. The learned Magistrate on a lengthy discussion and consideration of the affidavits and the documentary evidence on record decided the question of possession in favour of the first party, opposite party herein, and accordingly passed the necessary orders as per Section 145(6), Cr. P. C. The second party thus being aggrieved by the aforesaid order dated 6-3-1967 of the trial court, at first filed on 29-3-67 a revision (Criminal Revision Petition No. 5 of 1967) before the Sessions Judge, Kotaput-Jeypore, 'who on 9-1-68 dismissed the same on the finding that there was no justification to refer the matter to this court. Thereafter, the petitioner filed this revision on 2-2-1968, and this court while admitting the revision on 9-2-68 and later on 5-4-68 ordered that the question of limitation, for the delayed filing of this revision as pointed out by the Stamp Report dated 5-2-68, would be taken up for consideration at the time of hearing. The petitioner did not file any petition to condone the said delay of 304 days, as shown by the Stamp Reporter, till Friday, the 8th May, 1970, on which date an application under Section 5 read with Section 14 of the Limitation Act, affirmed by an Advocate's Clerk of Cuttack, was filed for the first time in this court, after making a mention of this revision on this score and the hearing of this revision was taken up on Monday the 11th May, 1970. In this petition filed on behalf of the petitioner it is stated that after the final orders of the Magistrate 1st Class on 6-3-67, and the order of the Sessions Judge dated 9-1-68, dismissing the revision preferred against the said final order, the petitioner applied for a certified copy of the judgment on 10-1-68 and obtained the same on 20-1-68, and after obtaining the said certified copy the records of the case were sent to the petitioner's advocate at Cuttack by post, who received the same on 31-1-68. It is stated therein that due to the pendency of the criminal revision in the court of the Sessions Judge, no revision could be filed in the High Court, and that due to inadvertence, no petition under Section 5 of the Limitation Act could be filed at the time of filing this revision. Mr. Misra, the learned counsel appearing for the petitioner, apart from reiterating the averments in the petition, further contended that four out of five affidavits filed by the first party and all the four affidavits filed by the second party in the trial court were before other Magistrates who were not in seisin of the 145 proceedings and so as per the latest Division Bench decision of this court reported in (1970) 36 Cut LT 250 = (AIR 1970 Orissa 209), this is a fit case which should be remanded back to the trial court to be adjudged afresh on giving the parties a fresh opportunity to file proper affidavits.

Mr. Y. S.N. Murty, the learned counsel for the opposite party, seriously opposed the prayer for condonation of the above delay and the above contention put forward by Mr. Misra, mostly on the grounds that the delay of 304 days in filing this revision in this court should not be condoned in view of the fact that the petitioner was althrough guilty of laches and negligence, and was not prosecuting in time his legal remedies in the proper court; and that the period from 14-3-67, the date on which the certified copy of the Magistrate's order was received, till 9-1-68, the date on which the Sessions Judge dismissed the revision petition, could not be excluded, as Section 14 of the Limitation Act is not applicable to the present case; and that the period between 10-1-68 and 20-1-68, the time taken for obtaining the certified copies of both the orders, could not be excluded under Section 12 of the Limitation Act, as the petition for the copies was filed beyond the period of limitation which started running from 6-3-67, the date on which the trial court pronounced its order; and that the period from 20-1-68 till 31-1-68 was also not explained satisfactorily by the petitioner; and that the petitioner was not entitled to any relief as he did not file the petition under Section 5 of the Limitation Act till 8-5-70 though the Stamp Reporter pointed out the inordinate delay of 304 days as early as 5-2-68, and this court by its orders dated 9-2-68 and 5-4-68 took up the question of limitation twice and ultimately left the matter to be considered at the time of hearing. It was further contended by Mr. Murty that the order sought to be revised, beine the order dated 6-3-1967 of the learned Magistrate, and not that of the Sessions Judge, this revision should have been filed within 90 days from 6-3-1967, as per Article 131 of the Limitation Act. 1963, and taking into account the time taken for obtaining the certified copy of the impugned order and the fact that this court was on vacation till the 19th June, 1967, this revision should have been filed within the proper time after the said vacation and not on 2-2-68 on any account. He also contended that the petitioner utterly failed to explain the delay of each day. On the above grounds Mr. Murty vehemently opposed the petitioner's prayer for condoning the delay.

4. There is enough force, weight and substance in the above contentions of Mr. Murty, The order actually and in effect sought to be revised in this case is the order passed in the proceeding by the learned Magistrate on 6-3-1967, and certainly not the order passed by the Sessions Judge in revision declining to refer the matter to this court. Now by the positive rule of limitation provided under Article 131 of the Limitation Act, 1963, an inflexible period of limitation (90 days) is prescribed for such an application for revision, and under Section 3 of the said Act such an application made after the above prescribed period shall have to be dismissed if the delay is not condoned under Section 5 of the said Act, There is no sanction in law for excluding the period for which the revision before the Sessions Judge remained pending in the said court, as the provisions of Section 14 of the Limitation Act, applicable only to civil proceedings are not applicable to such a case, (AIR 1939 Mad 512). The time taken by the petitioner (10-1-68 to 20-1-68) for obtaining the second copy of the Magistrate's order, which accompanied the petition for revision, cannot also be excluded under Section 12 of the Limitation Act, as the application for the same was filed beyond the period of limitation. The contention of Mr. Murty that the delay between 20-1-68 till 31-1-68 has not been satisfactorily explained, is not without any force. The averments in the petition, sworn to by the Advocate's clerk on 8-5-70, are merely to the effect that the records of the case were sent to the Advocate at Cuttack by post after 20-1-68 and were received by the Advocate at Cuttack on 31-1-68. There is nothing on record to support such a bald statement The petitioner not having filed this revision within the prescribed and permissible period under the Limitation Act, 1963, a very valuable right has accrued to the successful opposite party, which cannot and should not be very lightly brushed aside by condoning the inordinate delay of 304 days. It was the duty of the petitioner to know the period within which he was to file the revision in this court, and he having come up with such a time-barred revision petition should have made an honest, earnest and timely effort to satisfy this court that he had sufficient cause for not presenting this revision in time, and to that effect he should have furnished a detailed affidavit explaining distinctly the whole of the period of delay. No such effort was made in this case at the proper time though the question of limitation was taken by this court on two previous occasions. For the first time a petition to this effect, with the averments, as stated above, on affidavit by an Advocate's clerk of Cuttack, was filed only when the matter was posted on the Board for hearing after more than, two years of its filing. Moreover, all that is stated in that petition does not make out sufficient cause for condoning the whole period of delay. Moreover the concluding contention of Mr. Murty, that the petitioner would not suffer irreparably for non-condonation of the delay as he still has an efficacious remedy in the Civil Court, is also a factor militating against the exercise of the discretion under Section 5 of the Limitation Act in favour of the petitioner.

On all the above discussions and considerations, the contentions of Mr. Murty that this revision petition is time-barred and the delay in filing the same cannot be condoned, are worthy of credit, and are accordingly accepted.

5. No case for a flagrant miscarriage of justice is made out requiring the intervention of this court to set right a gross and palpable illegality of its own accord.

6. On the above findings and conclusions the other contention of Mr. Misra that the matter should be remanded to the court below for a rehearing on fresh affidavit does not require consideration.

7. The revision accordingly is dismissed.


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