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Dewan Singh and anr. Vs. Golap Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 859 R and 2285 R of 1972
Judge
Reported inAIR1973Cal302,77CWN566
ActsLimitation Act, 1908 - Section 5; ;Code of Civil Procedure (CPC) - Order 47, Rule 1
AppellantDewan Singh and anr.
RespondentGolap Singh and anr.
Appellant AdvocateBhupendra Nath Mitra, Adv.
Respondent AdvocateBhupendra Kumar Panda, Adv.
Cases ReferredMajor P. Bardhan v. Dr. B. Sarkar
Excerpt:
- .....dated 25-8-1971 passed by k. k. mitra, j., in c. r. 2595 of 1969 should not be reviewed. as the review application was out of time, an application under section 5 of the indian limitation act was filed on the 13th january, 1972 and the rule was issued by a. k.sinha, j., on the 15th march, 1972. the connected rule viz., c. r. 2285 r of 1972 is also at the instance of the petitioner, dewan singh, praying that the hearing of the suit in the court below may be stayed till the disposal of the earlier rule issued for review. an ad interim stay was also granted on terms when the rule was issued by my learned brother, a. k. sinha, j., on the 6th july, 1972.3. mr. bhupendra nath mitra appearing on behalf of the petitioner in both the rules made a twofold submission--firstly that there is.....
Judgment:
ORDER

N.C. Talukdar, J.

1. These two Rules are taken up together for disposal as they are interconnected. C. R. No. 2285 (R) of 1972 is ancillary to C. R. No. 859 (R) of 1972, depending on the same for an ultimate decision.

2. C. R. No. 859 R of 1972 at the instance of the Petitioner Dewan Singh is for review and the prayer is as to why the order dated 25-8-1971 passed by K. K. Mitra, J., in C. R. 2595 of 1969 should not be reviewed. As the review application was out of time, an application under Section 5 of the Indian Limitation Act was filed on the 13th January, 1972 and the Rule was issued by A. K.Sinha, J., on the 15th March, 1972. The connected Rule viz., C. R. 2285 R of 1972 is also at the instance of the petitioner, Dewan Singh, praying that the hearing of the suit in the court below may be stayed till the disposal of the earlier Rule issued for review. An ad interim stay was also granted on terms when the Rule was issued by my learned Brother, A. K. Sinha, J., on the 6th July, 1972.

3. Mr. Bhupendra Nath Mitra appearing on behalf of the petitioner in both the Rules made a twofold submission--firstly that there is sufficient reason under Section 5 of the Indian Limitation Act for a condonation of the delay in filing the application for review and secondly on merits. In this context, he urged that there should be a review of the order passed on the 25th August, 1971, when nobody appeared on behalf of the petitioner, and which is based on an error of law, as is apparent from the imprimatur of judicial decisions on the point. Mr. Panda joined issue and submitted that there should be no condonation of delay as (a) under Article 124 of the Limitation Act the period of limitation for review is only 30 days and not 90 days as previously provided for and Section 5 of the Indian Limitation Act is not applicable to a review application and (b) even if Section 5 was applicable there has been no explanation for each day's delay in filing the relevant application either under Order 47, Rule 1, Civil Procedure Code or under Section 5 of the Limitation Act. Mr. Panda next contended that on merits also the prayer for review is unwarranted and untenable and the Rules should be discharged.

4. Mr. Panda did not ultimately press the first branch of his objection to the (applicability) of Section 5 to an application under Order 47, Rule 1, Civil Procedure Code because of the amendment of the Indian Limitation Act and the uniform decisions on the point thereafter in favour of such an application. He however pressed his second branch of objection that there has been no explanation of each day's delay in filing both the petitions on behalf of the Petitioner for review and condonation. The relevant dates will appear from the averments made in the affidavits. The date of the petitioner's knowledge is the 17th December. 1971 and it is stated that he could not instruct his learned Advocate in the High Court before the 19th December, 1971. It appears also from the records that the application for review was filed on the 20th December, 1971 on being affirmed by a tadbirkar; and that subsequently on the 13th January, 1972 an application under Section 5 of the Limitation Act was filed, being affirmed by the petitioner himself. There is much force behind the contentions of Mr. Panda that the application filed for review is a belated one inasmuch as the impugned order was passed as far back as on the 25th August, 1971. No sufficient explanation has been given as to why the said application could not be filed earlier than the 20th December, 1971. Mr. Mitra's explanation again for the delay in filing the application under Section 5 of the Limitation Act is not tenable. The only reason urged is that when he moved the application for review, it was pointed out by the Court that an application under Section 5 would be necessary because of the delay that had already ensued and accordingly the application under Section 5 was filed on affirmation by the petitioner himself. No sufficient reason however appears from the relevant petitions or even the submissions of Mr. Mitra for each day's delay in the meanwhile. The position in law is quite clear and there is no cloud in view of the series of decisions on the point. Without multiplying the cases a reference may be made to the case of Ramlal. Motilal and Chhotelal v. Rewa Coalfields Ltd., reported in : [1962]2SCR762 wherein Mr. Justice Gajendragadkar (as His Lordship then was) delivering the judgment of the Court observed at page 768 that 'the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day'. Tt was further observed by the Supreme Court at page 767 that 'when the period of limitation prescribed has expired the decree-bolder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by Japse of time should not be light-heartedly disturbed'. I respectfully agree with the said observations and T hold that there has been no explanation of 'the delay made thereafter day by day' and I hold that the grounds stated do not constitute 'sufficient reasons' as enjoined under Section 5 of the Indian Limitation Act. Limitation is an important branch of adjective law resting on sound principle; it is a statute of repose, peace and justice. The intentions behind the statute as has been aptly observed by John Voet is that 'controversies are restricted to a fixed period of time, lest they should become immortal while men are mortal'.

5. In view of the aforesaid findings on limitation, it is not necessary any further to decide the second dimension of Mr. Mitra's arguments, based on merits. I will however proceed to consider the same, in view of the sustained arguments made in that context. The position of the petitioner in this respect again is not any the better and the application for review is not maintainable. The point for consideration is whether the application in the instant case comes within the ambit of any one of the three clauses enjoined under Order 47, Rule 1, Code of Civil Procedure, viz., (a) discovery of new and important matter or evidence which, after the exercise of due diligence was not within the petitioner's knowledgeetc., (b) on account of some mistake or error apparent on the face of the record and (c) for any other sufficient reason. Mr. Mitra's contention in the first blush is that there is an error of law and in the interest of justice the same should be construed as 'sufficient reason' constituting the third ground under Order 47, Rule 1 (1) Code of Civil Procedure. The third ground however viz., 'for any other sufficient reason' must be read ejusdcm generis with the two earlier grounds. The position has been made quite clear by the observations of Viscount Haldane in the case of Chhajju Ram v. Neki, reported in 26 Cal WN 697 = (AIR 1922 PC 112). The Judicial Committee interpreted the words 'any other sufficient reason' in Order 47, Rule 1 'as meaning a reason sufficient on grounds at least analogous to those specified immediately previously, that is to say, to excusable failure to bring to the notice of the Court new and important matters or error on the face of the record'. It has been further made clear by the Judicial Committee that on application for review the Court cannot proceed to deal with the case on merits as if on an appeal. The present application, therefore, does not come within the bounds of the words 'sufficient reason'. Mr. Mitra next urged that the present case comes within the ambit of the second ground mentioned in Order 47, Rule 1, viz., 'error apparent on the face of the record.' It is difficult again to agree with him. Even if there was an error while exercising the revisional jurisdiction under Section 115 of the Code of Civil Procedure, the same cannot be taken to be a mistake or an error on the face of the record. It was held by Mr. Justice Mohammad Ismail in the case of Thakur Kishun Chand Singh v. Munshi Makund Sarup, reported in AIR 1938 All 308 that an erroneous view of the law on a debatable point or wrong exposition of the law or a wrong application of the law cannot be considered to be a mistake or an error apparent on the face of the record. A reference in this context may again be made to a decision of this Court in the case of Major P. Bardhan v. Dr. B. Sarkar, reported in 53 Cal WN 869. Mr. Justice Sen, on a consideration of various cases including the decision of the Privy Council in Chhaju Ram's case 26 Cal WN 697 = (AIR 1922 PC 112) observed that a mere error of law does not afford sufficient ground for review. This branch of Mr. Mitra's submission is therefore also not maintainable. Mr. Mitra ultimately contended that in any event the case comes within the purview of the first ground viz., 'the discovery of new and important matter or of evidence, which after due diligence, was not within his knowledge. Mr. Mitra's contention however overlooks that the discovery enjoined is not that by the Court but by the party and in any event the error referred to by him does not come within the bound of discovery provided for in Order 47, Rule 1,Code of Civil Procedure. The second dimension also of Mr. Mitra's contention, relating to merits, accordingly fails.

6. In the result, C. R. No. 859 (R) of 1972 is discharged without costs; and the other Rule, viz., C. R. 2285 (R) of 1972, which is only an ancillary one, depending on the decision of the earlier Rule, is also discharged. There shall be no order as to costs.

7. The Records shall go down as early as possible.


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