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Shethia Mining and Manufacturing Corporation Ltd. Vs. Khas Dharmaband Colliery Company Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 449 of 1979
Judge
Reported inAIR1982Cal413,1982(2)CHN49,86CWN919
ActsLimitation Act, 1963 - Schedule - Article 122; ;Code of Civil Procedure (CPC) , 1908 - Section 148
AppellantShethia Mining and Manufacturing Corporation Ltd.
RespondentKhas Dharmaband Colliery Company Pvt. Ltd.
Appellant AdvocateR.C. Deb, ;Batchwat and ;R.N. Mitra, Advs.
Respondent AdvocateBhabra and ;P.K. Das, Advs.
Cases ReferredChinnamarkathian v. Ayyavoo
Excerpt:
- .....limited against the order dated july 3, 1979 of a learned single judge of this court whereby the learned judge dismissed the application of the appellant filed on dec. 7, 1978.2. on feb. 7, 1972, the appellant filed a suit against the respondent in the original side of this court praying for a decree for rs. 12,25,615.62, being the balance of the price of the goods sold and delivered by the appellant to therespondent. the respondent entered appearance in the suit and filed its written statement. on july 16, 1975, the respondent applied before the court below for discovery of documents by the appellant. it appears that on july 30, 1975, the appellant affirmed an affidavit of documents. the said affidavit was not, however, filed by the appellant. it is the case of the appellant that the.....
Judgment:

M.M. Dutt. J.

1. This appeal has been preferred by the appellant, Shethia Mining & Manufacturing Corporation Limited against the order dated July 3, 1979 of a learned single Judge of this Court whereby the learned Judge dismissed the application of the appellant filed on Dec. 7, 1978.

2. On Feb. 7, 1972, the appellant filed a suit against the respondent in the Original Side of this Court praying for a decree for Rs. 12,25,615.62, being the balance of the price of the goods sold and delivered by the appellant to therespondent. The respondent entered appearance in the suit and filed its written statement. On July 16, 1975, the respondent applied before the Court below for discovery of documents by the appellant. It appears that on July 30, 1975, the appellant affirmed an affidavit of documents. The said affidavit was not, however, filed by the appellant. It is the case of the appellant that the affidavit, after it was affirmed, was sent by the appellant to its Directors in Bombay for their approval, but it was lost sight of and so it could not be filed. Be that as it may, on Aug. 5, 1975 the Court below directed the appellant to file the affidavit of documents within 10 days and further directed that in default the suit would stand dismissed.

3. The affidavit of documents which was affirmed by the appellant on July 30, 1975 was not filed within 10 days that was allowed by the learned Judge. A long time after the expiry of the period of 10 days, that is to say, on Apr. 24, 1976, the respondent consented in writing to the filing of the affidavit of documents. On Apr. 30, 1976 the Court below granted liberty to the appellant to file the affidavit of documents which was affirmed on July 30, 1975 and the appellant filed the same on that date, Thereafter, the appellant gave notice to the respondent for mentioning the suit for hearing and in terms of the said notice on Nov. 20, 1978, the suit was mentioned by the appellant for fixing a date of hearing. It was, however, contended on behalf of the respondent that the suit stood dismissed by virtue of the order dated Aug. 5, 1975. In view of the said contention, the hearing of the suit was not fixed and that led to the appellant to the filing of an application, inter alia, praying for the following reliefs :

(1) Liberty to the appellant to proceed with the hearing of the suit;

(2) Extension of time to file the affidavit of documents till April 30, 1976 and

(3) Condonation of delay in filing its affidavit of documents which had been affirmed on July 30, 1975. The said application was opposed by the respondent,

4. The learned Judge, after considering the facts and circumstances of the case and submissions made on behalf of either party, came to the finding that the application was barred by limitationunder Article 122 of the Limitation Act, 1963. It was held by the learned Judge that the order dated Aug. 5, 1975 was final and binding, and that the same having been perfected, the Court could not exercise its inherent power to set it aside. The learned Judge observed, inter alia, that the default clause having become operative, there was no room for the application of the inherent power. Upon the said findings, the learned Judge dismissed the said application. Hence, this appeal.

5. The principal ground which weighed with the learned Judge was that the application was barred by Article 122 of the Limitation Act. Article 122 prescribes a period of 30 days for filing an application for the restoration of a suit or appeal or application for review or revision, dismissed for default of appearance or for want of prosecution or for failure to pay cost of service of process or to furnish security for costs. It is apparent that the provision of Article 122 does not in terms apply to the application with which we are concerned. The application is one for extension of time and/or for a direction for the hearing of the suit or condonation of the delay in filing the affidavit of documents. Article 122 has, therefore, no manner of application. The learned Judge was, therefore, not right in holding that the application was barred by Article 122 of the Lim. Act. Before we consider other points, it is significant to notice one fact, viz., that the respondent consented in writing to the filing of the affidavit of documents. It is, however, the case of the respondent before us that the said consent was obtained by the appellant by suppression of some facts. In the trial Court, no such plea Was taken on behalf of the respondent. For the first time it is alleged before us that the respondent was misled to give its consent in writing for the filing of the affidavit of documents. We have considered the allegation of the respondent and we are of the view that there is no merit in the plea that the respondent was misled to give its consent in writing to the filing of the affidavit of documents.

6. Another significant fact which has not been considered by the learned Judge is that long after the order dated Aug. 5, 1975 was passed, Sabyasachi Mukherji, J. by his order dated April 30, 1976 granted liberty to the appellant to file the affidavit of documents whichwas affirmed on July 30, 1975 and, as stated already, by virtue of that liberty the appellant filed the affidavit of documents. That order has not been recalled or set aside. Indeed, no complaint was made by the respondent against the said order dated April 30, 1976. It is, however, argued before us that the appellant procured the said order from the learned Judge without disclosing that the suit stood dismissed by virtue of the order dated Aug. 5, 1975. We do notl know what representation was made by the appellant before the learned Judge, but all that we want to point out is that the respondent also did not bring to the notice of the Court that the said order was procured by the appellant by suppression of material facts. In out opinion, it is now too late to say that, the order was passed by the learned. Judge at the instance of the appellant who suppressed the fact of the dismissal of the suit. In the circumstances, we are unable to accept the contention of the respondent that the said order should be ignored. The learned Judge has not considered the effect of the said order. In the face of the said order, we are afraid, the learned Judge had no jurisdiction to hold that the suit stood dismissed. It is clear that after the said order dated April 30 1976 was passed, there was an implied extension of the time to file affidavit of documents and also the recalling of the order dated Aug. 5, 1975 under which the suit was directed to be dismissed in default of the affidavit of documents being filed within the period allowed.

7. It is contended on behalf of the respondent that as the consequence that has been indicated in the order dated Aug. 5, 1975 had taken place, the Court became functus officio and had no jurisdiction to entertain any prayer for extension of time. Indeed the contention is that the Court had no power to extend the time after the expiry of the period of 10 days within which the appellant was directed to file its affidavit of documents. This contention, in our opinion, is not sound. It is true that sometimes in a procedural matter the Court has to pass a conditional order, that is to say, an order in terrorem for the purpose of compelling a litigant to comply with the procedure and thereby avoiding prolongation of the suit or proceeding, but that does not mean that in such matters the Court is powerless toextend the time which it had initiallygranted.

8. In Mahanth Ram Das v. Ganga Das, : [1961]3SCR763 , the Supreme Court made the following observation (para 5):

'Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happened within the time fixed.'

Again, in a recent decision of the Supreme Court in Chinnamarkathian v. Ayyavoo, : [1982]2SCR146 , the Supreme Court on an interpretation of Section 148 of the Civil P.C. has observed that the true purport of conditional orders is that such orders merely create something like a guarantee or sanction for obedience of the court's order but would not take away the court's jurisdiction to act according to the mandate of the statute or on relevant equitable considerations if the statute does not deny such consideration. Under Section 148 of the Civil P.C., the Court has undoubtedly the power to grant extension of time even after the expiry of the period initially granted. There is a similar provision under Rule 46 of Chap. 38 of the Original Side Rules which confers a power on the Court or a Judge to extend time even though the application for extension is not made until after the expiration of the tune appointed or allowed. In this connection, it may be said that there is some difference between extension of time in a procedural matter and extension of time in regard to a conditional decree which has also been noticed by the Supreme Court in Mahanth Ram's case (supra), the relevant observation having been already set out above. In our opinion, it is wrong to think that in procedural matters the Court becomes powerless after the expiry of the period mentioned in a conditional order. If any contention in this regard is accepted that may operate harshly against bona fide litigants and will under justice. We are, therefore, of the view that the learned Judge was not right in entertaining the view that the Court had no power to extend time after the conditional order had taken effect.

9. For the reasons aforesaid, we set aside the order of the learned Judge andallow the application for extension or for condonation of delay. The delay in filing the affidavit of documents is condoned. We direct that the affidavit of documents shall be accepted. Further, we direct that the Court below will proceed with the hearing of the suit in accordance with law. The appeal is allowed. The appellant shall, however, pay the costs of this appeal to the respondent, hearing fee being assessed at 30 G.Ms.

10. After the judgment was delivered Mr. P. K. Das, learned counsel who was assisting Mr. Bhabra, the learned senior counsel for the respondent, takes a point against the maintainability of the appeal. It may be stated that at the very outset when Mr. Bhabra was not present, Mr. Das took the point. After the appellant's counsel finished his submissions in support of the appeal, we called upon Mr. Bhabra to reply. Mr. Bhabra, however, did not argue any point against the maintainability of the appeal, although he made his submissions on other points. In the circumstances, we had no occasion to consider the question of maintainability of the appeal, nor was there any scope for calling upon the appellant for a reply on the point. Had Mr. Bhabra taken or raised the point as to the maintainability of the appeal, we would have surely considered the same after calling upon the appellant to reply to the point, if thought necessary, We are, therefore, not at all inclined to consider the point as to the maintainability of the appeal as submitted by Mr. Das, after the delivery of the judgment and in the absence of Mr. Bhabra.

11. Mr. Das prays for a certificate for appeal to the Supreme Court under Article 134A of the Constitution, We do not think that any substantial question of law is involved in this appeal, nor do we think that any point is required to be decided by the Supreme Court. The oral prayer for a certificate for appeal to the Supreme Court is, accordingly, disallowed. We also disallow the prayer of the respondent for stay of operation of this judgment.

Amitabha Dutta, J.

12. I agree.


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