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Hemanta Kumar Dey Vs. Taramani Devi Tibriwalla - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2556 of 1971
Judge
Reported inAIR1973Cal144,76CWN710
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 100; ;Limitation Act, 1963 - Section 5
AppellantHemanta Kumar Dey
RespondentTaramani Devi Tibriwalla
Appellant AdvocateHirendra Chandra Ghose and ;Samindra Chandra Ghose, Advs.
Respondent AdvocateAshoke Kumar Sengupta, Adv.
DispositionApplication allowed
Excerpt:
- ordersantosh kumar chakravarti, j.1. an application under order 21, rule 100 of the code of civil procedure had been filed by the opposite party no 1 on the 2nd august, 1968 and the allegations are that she was dispossessed from the premises in question on the 25th may 1968 but she came to know about it only ten days before the 2nd of august, 1968, as she was at kathamandu. the decree-holder, who is the petitioner before me, contended that the application was time barred not having been filed within thirty days from the date of dispossession and prayed to the court that this point may be taken up at a preliminary hearing of the issues. the court below did not accede to that prayer, even allowed the prayer of the opposite party no. 1 to be examined on commission and then wanted to take.....
Judgment:
ORDER

Santosh Kumar Chakravarti, J.

1. An application under Order 21, Rule 100 of the Code of Civil Procedure had been filed by the opposite party No 1 on the 2nd August, 1968 and the allegations are that she was dispossessed from the premises in question on the 25th May 1968 but she came to know about it only ten days before the 2nd of August, 1968, as she was at Kathamandu. The decree-holder, who is the petitioner before me, contended that the application was time barred not having been filed within thirty days from the date of dispossession and prayed to the Court that this point may be taken up at a preliminary hearing of the issues. The court below did not accede to that prayer, even allowed the prayer of the opposite party No. 1 to be examined on commission and then wanted to take down the evidence on all the points end then dispose of the point of limitation also along with the other issues. The decree holder has come up against that order in this rule.

2. It is clear that such an application has to be filed within thirty days from the date of dispossession, and here the date of dispossession, is the 25th May. 1968, and the application has been filed much beyond thirty days from that date. Section 5 of the Limitation Act, 1963, would show that it would not apply to any of the provisions of Order 21 of the Code of Civil Procedure. In the circumstances, it was not necessary for the learned Munsif to go into other questions or to take down any evidence at all and he should have dismissed themiscellaneous case at once as time barred.

3. This Rule therefore succeeds and is made absolute, the order passed by the learned Munsif is set aside and the application under Order 21. Rule 100 of the Code of Civil Procedure is dismissed without costs as time barred. The opposite party No. 1 may file a suit under Order 21. Rule 103 of the Code, if so advised, if it lies.

4. Each party will bear its own costs in this Court.

5. Let the records go down as quickly as possible.


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