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William Jacks and Co. (India) Ltd. Vs. Sm. Sumitra Sen - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Appln.
Judge
Reported inAIR1984Cal12,87CWN1016
ActsLimitation Act, 1963 - Sections 5 and 14; ;Code of Civil Procedure (CPC) - Order 9, Rule 13
AppellantWilliam Jacks and Co. (India) Ltd.
RespondentSm. Sumitra Sen
Appellant AdvocateS.N. Tagore, ;S.K. Ghoshal and ;S.N. Sinha, Advs.
Respondent AdvocateSubhas Banerjee and ;Tapan Sen, Advs.
DispositionApplication dismissed
Cases ReferredJokam Reddy v. GokarMallaiah
Excerpt:
- .....against the very decree under appeal which failed on its merits can be excluded for computing the period of limitation for the appeal subsequently filed against the said decree. 2. relevant facts are not in dispute. an ex parte decree was passed against the petitioner on may 24, 1979, in ejectment suit no. 87 of 1978 though the petitioner appeared in the suit to contest. on aug. 2, 1979, the petitioner filed an application under order 9, rule 13 of the code along with an application under section 5 of the limitation act. the de-lay in filing the said application under order 9, rule 13 of the code having been condoned, the said application was heard en its merits and on contest. it, however, failed and was dismissed on feb. 14, 1981. an appeal therefrom also failed and was dismissed on.....
Judgment:

Anil K. Sen, J.

1. This is a revisional application at the instance of the defendant-appellant whose application under Section 5 of the Limitation Act for condoning the delay in preferring an appeal against an ex parte decree before the lower appellate court has been dismissed by the said court. The order impugned is one dt. May 11, 1983, passed by the learned District Judge, 24-Parganas in Title Appeal No. 275 of 1982. A short point which arises for our consideration on the present revisional application is as to whether the time spent by the appellant-petitioner in unsuccessfully prosecuting an application under Order 9, Rule 13 of the Civil p. C. against the very decree under appeal which failed on its merits can be excluded for computing the period of limitation for the appeal subsequently filed against the said decree.

2. Relevant facts are not in dispute. An ex parte decree was passed against the petitioner on May 24, 1979, in Ejectment Suit No. 87 of 1978 though the petitioner appeared in the suit to contest. On Aug. 2, 1979, the petitioner filed an application under Order 9, Rule 13 of the Code along with an application under Section 5 of the Limitation Act. The de-lay in filing the said application under Order 9, Rule 13 of the Code having been condoned, the said application was heard en its merits and on contest. It, however, failed and was dismissed on Feb. 14, 1981. An appeal therefrom also failed and was dismissed on Dec. 12, 1981. A revisionai application, challenging those orders also failed and was dismissed on Mar. 16, 1982.

3. In that background the petitioner then preferred an appeal against the very same ex parte decree on Mar. 25, 1982. T. A. 275 of 1982 as aforesaid. Since the appeal was preferred long beyond the period of limitation (i.e. 1064 days) the petivioner filed an application order Section 5 of the Limitation Act. In this application the case made out by the petitioner is that on account of mistaken advice of their lawyer they filed an application under Order 9, Rule 13 of the Code and bona fide prosecuted the same until Mar. Hi, 1982, hence that period should be excluded in computing the period of limitation for the appeal. This application was heard on evidence and the learned District Judge rejected the -same on a finding that the appellant-petitioner had failed to establish their case that they pursued the remedy under Order 9, Rule 13 of the Code upon any mistaken advice. He refused to believe the petitioner's case that such mistake could be found out only alter the application had failed in three courts. Feeling aggrieved the petitioner has now moved this court challenging the said order of the learned District Judge.

4. Mr. Tagore appearing in support of his revisional application has strongly contended that the learned District Judge should have accepted the case of the petitioner that they were prosecuting a wrong remedy upon a mistaken advice which could be detected only after the failure of the revisional application preferred against the appellate order arising out of the application under Order 9, Rule 13 of the Code. According to Mr. Tagore in any event the period spent in prosecuting the said application is liable to be excluded in computing the period of limitation for preferring an appeal against the ex parte decree.

Strong reliance is placed by Mr. Tagore on the decision of the Privy Council in the case of Brij Inder Singh v. Kanshi Ram 44 Ind App 218 : (AIR 1917 PC 156).

5. Caveat having been lodged. Mr. Banerji appearing on behalf of the plaintiff-respondent has contested the points raised by Mr. Tagore. According to Mr. Banerji, the appellant-petitioner had alternative remedies open to him against the ex p,arte decree and if he had chosen one, he had done so upon his own choice and the period spent in prosecuting such a remedy cannot be excluded if that had not failed on the ground of defect of jurisdiction or any cause of like nature.

6. We have carefully considered the points raised by Mr. Tagore. Admittedly when the petitioner suffered an ex parte decree, they had before them two remedies, viz., by way of an appeal or by filing an application for setting aside the ex parte decree on sufficient grounds being made out for non-appearance. In the present case the petitioner chose the latter remedy -- may be on lawyers's advice. But pursuing such a remedy cannot be said to be on a mistaken advice only because the petitioner is now being advised that an appeal should have been a more advisable remedy. Both remedies are contemplated by law and the remedy by way of filing an application under Order 9, Rule 13 of the Code was available to the petitioner in law and hence it cannot be said to be a wrong remedy pursued on a mistaken legal advice. Hence the learned District Judge was right in his conclusion that the petitioner has not made out any case of prosecuting a wrong remedy on any mistaken advice of a lawyer. More so when they prosecuted the same in three courts and it is difficult to believe that such a mistake could be made out only when their revisionai application failed.

7. But the more important issue that has been raised by Mr. Tagore is that even assuming the position that the petitioner had been prosecuting an alternative remedy which has ultimately failed, even then the period spent in prosecuting such a remedy has to be excluded in computing the period of limitation for preferring an appeal against the very same ex parte decree. Referring to the Privy Council decision referred to hereinbefore he has contended that if the period spent in prosecuting a review petition is to be so excluded as laid down by the Privy Council, then why not the time spent in prosecuting another similar remedy under Order 9, Rule 13 of the Code. The point thus raised by Mr. Tagore had also been raised earlier before this Court and had been decided against him for reasons with which we fully agree.

8. It is settled principle now that though Section 14 of the Limitation Act does not apply on its terms to an appeal, the principles underlying the same can be invoked in aid of sufficient cause contemplated by Section 5 of that Act. But one of the basic requirements of Section 14 of the Limitation Act is that remedy pursued must fail on the ground of defect of jurisdiction or other causes of like nature. The word's causes of like nature read in their context obviously denote that the defect must be of such a character as would prevent the court from deciding it on its merits. Therefore, if a remedy under Order 9, Rule 13 of the Code is available in law and when pursued had failed on its merits, it cannot furnish the basis for invoking the principles underlying Section 14 of the Limitation Act. It is no doubt true that in Brij Inder's case, the Privy Council upheld the view that time spent in prosecuting a review petition should be excluded in computing the period of limitation for preferring an appeal against the decree under review. But that was not done on the basis of any general principle of law laid down or enunciated by the Privy Council, but it was so done because such a practice had been universally followed by courts in India and the Privy Council did not like to unsettle the same. Hence it is not possible to extend the decision of the Privy Council to cases like the present one as contended for by Mr. Tagore. This court in two earlier Bench decisions took the same view after considering the decision of the Privy Council. Reference may be made to the case of Abodhbala v. Radharani ILR (1950) 2 Cal 252 and Rajendra Nath v. Kamal Krishna ILR 59 Cal 1057 : (AIR 1932 Cal 558). Though Mr. Tagore made great efforts to persuade us to differ from that view and refer it to a larger Bench, we are unable to persuade us to do so. We fully endorse the reason given by this court in its earlier decision in view of the basic requirements of a principle underlying Section 14 of the Limitation Act and we respectfully agree with the view expressed by this Court in those decisions. That view is now shared by the Andhra Pradesh High Court vide Jokam Reddy v. GokarMallaiah : AIR1977AP367 and there is no dissenting view so far expressed.

9. Hence the points raised by Mr. Tagore fail. The application fails and is dismissed.

10. Leave under Article 134A of the Constitution has been prayed for and is refused.

S.N. Sanyal, J.

11. I agree.


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