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Kanai Lall Shaw Vs. Bhattu Shaw - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 69 of 1960
Judge
Reported inAIR1961Cal474,65CWN249
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 9; ;Limitation Act - Schedule - Article 163
AppellantKanai Lall Shaw
RespondentBhattu Shaw
Appellant AdvocateS.N. Ghorai, Adv.
Respondent AdvocateS. Das, Adv.
DispositionAppeal dismissed
Cases ReferredHakim Lala Sebaram Agarwalla v. D. L. Dutt. In
Excerpt:
- .....the court as published on february 4, 1960 and also on february 5, 1960. in the peremptory cause list of february 4, 1960 the plaintiff's suit was the eighth suit under the heading 'other suits' before datta, j., and the suit which was immediately after the plaintiffs suit was hakim lala sebaram agarwalla v. d. l. dutt. in the peremptory cause list of the following day all the other suits appearing before and after the plaintiffs suit appeared before datta, j., but the plaintiffs suit was not on the list. it is strange that in spite of this the plaintiff's attorney or his court clerk did not make any enquiries as to the reason why the plaintiffs suit had suddenly disappeared from, the peremptory cause list and this leaves us in no doubt that the plaintiff's attorney was aware of the.....
Judgment:

Lahiri, C.J.

1. This appeal is by the plaintiff against an order of Ray, J., dated March 30, 1960, by which his Lordship has dismissed the plaintiff's application for restoration of a suit Which was dismissed tor default on November 18, 1959. The facts which are relevant for the purposes of the present appeal are these. The plaintiff's suit appeared in the Peremptory List of G. K. Mitter, J. ior some time. But after the reopen-ing of this Court after the Long Vacation of 1959 the suit appeared in the Permptory List of Bay, J. On November 18, 1959, it appeared in the Peremptory List of Ray, J., but the names of the attorneys of the plaintiff and the defendant were wrongly printed in the Peremptory List. The actual name of the plaintiff's attorney is Mr. S. M. Chatterjee whereas in the Peremptory List it was printed as Mr. S. M. Chowdhury. The correct name of the defendant's attorney is Mr. Atul K. Chatterjee, but in the Peremptory List of November 18, 1959 it was wrongly printed as B. Chatterjee. It is said that as a result of this misprint of the names of the attorneys the plaintiff's attorney lost sight of the suit and took no steps when it was called on lor hearing, with the result that it was dismissed for default with costs. It appears that the defendant's attorney was present. Although the suit was dismissed for default on November 18, 1959, under some strange process, which points to some radical defect in the Office of the Original Side, the suit again made its appearance in the Peremptory List of Datta, J., and it continued to appear in his Lordship's list on January 28, 1960, January 29, 1960 and February 4, 1960. After that date it again disappeared from the Peremptory List of Datta, J., till, on February 26, 1960, the plaintiff's counsel mentioned the suit before the Court and under the direction of Datta, J., it was placed on the Peremptory List of March 2, 1960, as 'to be mentioned'. On March 2, 1960, the suit appeared in the Peremptory List as 'to be mentioned' and as nobody appeared on behalf of the defendant respondent the learned Judge ordered that the suit be fixed for hearing on March 7, 1960. At 2 p.m. on the same date the learned counsel for the defendant stated before the Court that the suit had already been dismissed for default on November 18, 1959 by Ray, J. Thereupon the plaintiffs counsel upon an oral application obtained an order for stay of drawing up of the order of Ray, J., dated November 18, 1959 and on the plaintiff's prayer for restoration of the suit he was directed to file an application under Order 9, Rule 9 of the Code of Civil Procedure. On March 8, 1960, the plaintiff took out a notice of motion with the prayers that the order of dismissal dated November 18, 1959 be set aside and that the suit be restored. In the petition the plaintiff made a case to the effect that as a result of the misprint of the names of the attorneys on November 18, 1959, the plaintiff's attorney was misled and the order of dismissal for default was passed by Ray, J., without the knowledge of the plaintiff or his attorney. The plaintiff further states in this petition that he came to know about the order of dismissal for default for the first time on March 2, 1960, when the learned counsel for the defendant mentioned before Datta, J., at 2 p. m. that the suit had already been dismissed for default. The plaintiff's case is that he was wholly ignorant of the order of dismissal for default prior to that date. The defendant in his atfidavit-in-opposition challenges the allegations made in the plaintiffs petition and in paragraph 12 of the affidavit-in-opposition states that the suit appeared in the Peremptory List of Datta, J., on January 28, and 29 and February 4, 1960 and that on the last date, that is to say, on February 4, 1960, the learned counsel for the defendant informed the Court that the suit had been dismissed on November 18, 1959, by Ray, J. and therefore the suit had gone out of the list. The defendant further states in paragraph 12 that nobody on behalf of the plaintiff was present in Court on that date. In paragraph 11 of the affidavit-in-reply the plaintiff meets the allegation made in paragraph 12 of the affidavit-in-opposition by saying that he and the Court Clerk Sri Hari Sankar Chatterjee, of his attorney personally attended the Court of Datta, J., on January 28, 29 and February 4, 1960, and he states that the suit was not called on on those three dates.

2. In dismissing the plaintiff's petition under Order 9, Rule 9, Ray, J., has not delivered any judgment and that is why elaborate arguments have been advanced before us upon the affidavits filed by the plaintiff and the defendant. Upon the affidavits the points that emerge for consideration are two : (1) whether there was sufficient cause for the non-appearance of the plaintiff on November 18, 1959 and (2) whether the plaintiff's application is barred by limitation. On the first question, the fact that the name of the plaintiff's attorney was wrongly printed in the Peremptory List of November 18, 1959, is not disputed. We have also sent for the Peremptory Cause List of that date and from the entries in the Cause List it appears that the name of the plaintiff's attorney was wrongly printed as 'S. M. Chowdhury' whereas it should have been printed as 'S. M. Chatterjee'. This fact in my opinion is sufficient to indicate that the plaintiff's attorney was misled by the misprint of his name. We are told that at the time of examining the Peremptory Cause List the attorneys and their clerks generally do not remember the number of the suit or the names of the litigants, but they mark only those suits in which the names of the attorneys appear. As a result of the fact that the name of the plaintiffs attorney was not correctly printed, it is reasonable to hold' that he was misled and this may amount to a sufficient cause within the meaning of Order 9, Rule 9 of the Code of Civil Procedure. If the matter had rested here and if no other question had arisen for our consideration, we would have allowed this appeal, and at one stage of the argument we were inclined to do so, but on closer consideration and on a consideration of other facts we are unable to interfere with the order of Ray, J.

3. The insuperable difficulty which lies in the way of the appellant is the question of limitation. An application under Order 9, Rule 9, is governed by Article 163 of the Indian Limitation Act which gives the plaintiff a period of thirty days from the date of dismissal' to make his application. It has been contended on behalf of the respondent that the starting point of limitation under Article 163 is the date of dismissal, no matter whether the plaintiff had knowledge of the order of dismissal. This view is supported by the judgment of P. B. Mukharji, J., in the case of Debendra Nath Dutt v. Sm. Satyabala Dassi, : AIR1950Cal217 which deals with an application under Order 9, Rule 9. There are also observations to the same effect in the Full Bench case of Abed Ali v. Prafulla Kumar, : AIR1952Cal544 which deals with an application under Order 9, Rule 13 of the Code of Civil Procedure, the corresponding period of limitation of which is governed by Article 164 of the Indian Limitation Act. In Debendra Nath Dutt's case, : AIR1950Cal217 P. B. Mukharji, J. held that, knowledge or no knowledge, the plaintiff's application for setting aside an order of dismissal tor default must be filed within thirty days from the date of the order of dismissal. If this rule be applied in all its strictness to the facts of the present case, there can be hardly any doubt that the plaintiff's application under Order 9, Rule 9 filed on March 8, 1960 is hopelessly barred under Article 163 of the Indian Limitation Act. It was filed nearly tour months after the date of the order of dismissal for default. It was, however, contended on behalf of the appellant to soften the rigours of the law on this point that we should invoke our inherent jurisdiction to grant relief to the appellant. That we have no jurisdiction to do so was said by P. B. Mukharji, J., in Debendra Nath Dutt's case, : AIR1950Cal217 , still to satisfy ourselves as to whether it was a fact that the plaintiff came to know about the order of dismissal for default for the first time on March 2, 1960, at 2 p. m. we examined the different statements and also the Court records in some detail. On an examination of these materials I must say that I am far from satisfied that the plaintiff came to know about the order of dismissal for default for the first time on March 2, 1960, as alleged by him in the petition in support of the notice of motion. I have already said that the defendant in his affidavit-in-opposition stated in paragraph 12 that his Counsel stated in Court on February 4, 1960, that the suit had been dismissed on November 18, 1959 and that was the reason why the suit had gone out of the list. The plaintiff's answer to this allegation is far from satisfactory. He merely says that he and the Court Clerk of his attorney were present in Court on February 4, 1960 and that the suit had not been called on. To satisfy ourselves as to what really happened on February 4, 1960, we sent for the Minute-Book of the Court of that date and that minute contains the following entry after

'Midday adjournment from 1-30 p.m. to to 2-5 p.m.' :

'Other Suit

3758/51

Mr. S. Das mentions suit andstates that suit had been disposed of and has come by mistake,

Kanai Lat Shaw v. Bhattu Shaw

TheCourt:-To go out of the list.'

This entry makes it clear that the suit was really mentioned by the learned Counsel for the defendant on February 4, 1960 before Datta, J., and if the statement made by the plaintiff in paragraph 11 of the affidavit-in-reply is to be construed literally -- and I see no reason for putting any other construction -- I am bound to hold that this mentioning by the learned Counsel for the defendant was made in the presence of the plaintiff and the Court Clerk of his attorney. If that be so, the story that the plaintitf was ignorant of the order of dismissal for default till March 2, 1960 cannot be accepted as true. Mr. Ghorai, the learned Counsel for the plaintiff, has now sought to argue before us in appeal for the first time that even assuming that the suit was mentioned in the presence of the plaintiff, the plaintiff being a layman was unable to follow what was happening in Court and, therefore, it cannot be said that he had knowledge of the Court's order on February 4, 1960. There are two reasons why this argument cannot be accepted. In the first place, no such case was made out in the affidavit-in-reply, although the defendant in his affidavit-in-opposition expressly stated that the suit was mentioned on February 4, 1960, before Datta, J. In the second place, besides the plaintiff the Court Clerk of his attorney was also present according to his statement in paragraph 12 of the affidavit-in-reply. If that be so, there is no reason why we should hold that the plaintiff did not understand what happened on that date. On top of all this, there is a fact which concludes this aspect of the matter against the plaintiff. We have examined the Peremptory Cause Lists of the Court as published on February 4, 1960 and also on February 5, 1960. In the Peremptory Cause list of February 4, 1960 the plaintiff's suit was the eighth suit under the heading 'other Suits' before Datta, J., and the suit which was immediately after the plaintiffs suit was Hakim Lala Sebaram Agarwalla v. D. L. Dutt. In the Peremptory Cause List of the following day all the other suits appearing before and after the plaintiffs suit appeared before Datta, J., but the plaintiffs suit was not on the list. It is strange that in spite of this the plaintiff's attorney or his Court Clerk did not make any enquiries as to the reason why the plaintiffs suit had suddenly disappeared from, the Peremptory Cause List and this leaves us in no doubt that the plaintiff's attorney was aware of the fact that the suit had been ordered to go out of the list by Datta, J., by his order dated February 4, 1960. At any rate, this sudden disappearance of the plaintiffs suit from the Peremptory Cause List should have put the plaintiff and his attorney on enquiry which would have enabled them to ascertain the real state of facts. There is no reason why the plaintiff or his attorney should have waited till February 26, 1960, for fixing a date of the suit as stated in the petition. If the plaintiff's allegation had been really true, he would have mentioned the matter before Datta, J., on February 5, 1960. I have, therefore, no doubt that the statement of the plaintiff that he came to know about the order of dismissal for default for the first time on March 2, 1960 cannot be accepted. In this view of the matter, I am unable to hold that the plaintiff's application under Order 9, Rule 9 is within time, even if we hold that the starting point of limitation is the date of the plaintiffs knowledge. To get rid of this difficulty the learned Counsel for the appellant advanced a desperate argument to the effect that the oral application made by the plaintiff on March 3, 1960, is equivalent to an application for setting aside the decree under Order 9, Rule 9 of the Code of Civil Procedure and he argues that since March 3, 1960 is within thirty days from February 4, 1960, when the plaintiff knew or should have known about the order of dismissal for default, the application is not barred by limitation. I am entirely unable to accept this argument for obvious reasons. This is nothing but an attempt to make out an altogether new case for the first time in the Court of Appeal and we cannot permit the appellant to do so. In the second place, it is impossible to hold that there can be an oral application under Order 9, Rule 9. The Court sometimes restores suits which have been dismissed for default on the oral application of Counsel, but that is not a power exercised under Order 9, Rule 9. It is sometimes done in the exercise of inherent jurisdiction of the Court before the end of the day or by consent. I am wholly unable to hold that the oral application of the plaintiff on March 3, 1960 saves the period of limitation for the application under Order 9, Rule 9.

4. Lastly, it was argued that, at any rate, the plaintiffs application must be treated as an application for a review under Order 47, Rule 1 of the Code of Civil Procedure, and since an application for review can be filed after the expiry of the period of limitation, the present application cannot be said to be barred under Article 163 of the Indian Limitation Act. This argument also is an afterthought which finds no place upon the averments of fact made in the petition. There is no ground set out in the plaintiff's petition which brings the case under any of the three clauses of Order 47, Rule 1 of the Code of Civil Procedure.

5. For these reasons I am of the opinion that this appeal has no merits and it must be dismissed with costs.

Bose, J.

6. I agree.


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