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Shree Chand Daga Vs. Sohanlal Daga and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1943Cal257
AppellantShree Chand Daga
RespondentSohanlal Daga and ors.
Cases ReferredKhetter Mohun Sing v. Kassy Nath Sett
Excerpt:
- .....together with an affidavit by a clerk of the plaintiff's attorney ramanandlal, affirming that the notice of motion had been served upon the defendants' solicitors, were taken to the office of the registrar of the original side of this court on 18th june and handed to someone in the registrar's office because on the notice of motion there are these words 'high court, original side, 18th june 1942' put on with a rubber stamp. on 22nd june 1942, the matter did not come before the learned judge as an adjournment was taken by one or both of the parties for the purpose of putting in further affidavits, with the result that the motion came on for hearing on 30th june, when gentle j. heard it and dismissed the application on the ground that it was time-barred under article 163 of schedule i,.....
Judgment:

Derbyshire, C.J.

1. This is an appeal from the dismissal by Gentle J., on 30th June 1942 of an application by the plaintiff Shree Chand Daga to have the decree dismissing his suit on 19th May 1942, set aside. The facts which led up to these two dismissals are as follows: The plaintiff Shree Chand Daga claims to be the owner of, or beneficially interested in, certain ornaments and jewellery which he says are worth about rupees six lacs. He says that one Motilal Kothari, his maternal grandfather, and one Pani Bai held the said ornaments and jewellery in trust for him; that in December 1932, the two trustees Motilal and Pani Bai made over the jewellery to defendants 1, 2, 3 and 4 for the purpose of effecting a composition between Motilal and his creditors, and that the said defendants agreed to return the jewellery if no composition took place. He alleges that no composition in fact took place and the ornaments and jewellery were not used for the purpose for which they were made over; the jewellery not having been returned defendants 1, 2, 3 and 4 held it in trust for him. He alleges that he was a minor at the time and that he attained majority on 23rd May 1937. In January 1937, the applicant, the plaintiff alleges that his father on his behalf served defendants 1, 2, 8 and 4 with a notice demanding the return of the ornaments and jewellery whereupon defendant 1 for the purpose of harassing him brought a suit for defamation in this Court which was dismissed on 11th April 1940. He goes on to allege that in order to recover the jewellery he began criminal proceedings in the Court at Bhandara in the Central Provinces against defendants 1, 2, 3 and 4. The defendants were discharged from those proceedings when the plaintiff took the matter up to the Nagpur High Court and that Court held that it was a civil dispute. Thereupon, on 12th May 1940, the plaintiff applicant began these proceedings against defendants 1, 2, 3 and 4 together with defendant 5 Pani Bai and defendant 6, the Official Assignee of Calcutta, being the assignee of the estate of Motilal, for a declaration that he is entitled to the jewellery and for a decree for recovery of the same or its value, rupees six lacs. The defendants entered appearance and denied his claim.

2. There were various interlocutory proceedings. The plaintiff asked leave to administer interrogatories to defendants 1, 2, 3 and 4. Panckridge J. on 26th August 1941, adjourned the application till the hearing of the suit. On 18th December 1941, the plaintiff says, the suit came on the special list by mistake, but that the mistake was corrected and the suit went into the prospective list of 20th December 1941. The plaintiff says that he was diligent, but that he had difficulty in getting some of his witnesses, who lived either in the Central Provinces or in Rajputana, to give evidence. He thereupon was advised to apply for their examination on commission. The application for the issue of commission was sent to the plaintiff at Nagpur on 3rd February 1942, where the plaintiff was then residing. On 4th February 1942, the suit appeared in the Warning List of Panckridge J., when the plaintiff's counsel applied to have a special date fixed for the hearing after the commission intended to be taken out had been executed. Panekridge J. thereupon, placed the suit on the Peremptory List for directions in the presence of the parties.

3. On 6th February 1942, the matter came before Panckridge J. but in view of the fact that he was going shortly to take up other work the suit was put back into the Warning List. On 16th February 1942, the plaintiff took out summons for an application before Sen J. for the issue of a commission to examine his witnesses. On 4th March 1942, Sen J. made an order for the issue of the commission subject to the plaintiff furnishing security for Rs. 4000 with liberty to the registrar to take Calcutta properties as security within a fortnight. The commission was made returnable within two months after the security was furnished. Prom 11th February 1942, the suit was in the Warning List and it was there till 4th March 1942 when it went out of that List. The plaintiff says that he found it impossible to arrange for security of any Calcutta property and he sent to his attorney in Calcutta a security bond and title deeds of his Nagpur properties valued at over Rs. 10,000 in order that the said properties might be accepted as security. The attorney tendered the security, but Sen J. refused to give the registrar liberty to accept it. He also refused to grant an extension of time to furnish the security.

4. The suit then went into the Warning List on 20th March 1942. It continued in the Warning List in various positions down to 3lst March when the Easter holidays began. On 5th May 1942, it appeared in the Warning List before Edgley J. occupying a position somewhere about 30, and it continued in that position substantially until 15th May 1942, which was a Friday. It appeared No. 1 in the Warning List on Monday, 18th May before McNair J. In the meantime, the commission to examine the plaintiff's witnesses had not been executed. On 18th May the plaintiff's attorney wrote to the defendants' attorneys saying that the suit was high up in the Warning List and might be transferred to the Peremptory List on any day and suggested that a special date that would be convenient for the witnesses who had to come to Calcutta should be fixed and that he intended making an application to McNair J. on 19th May 1942, that is the next day. On 19th May, McNair J. transferred the suit to the list of Gentle J. and on the same day plaintiff's counsel applied to Gentle J. for a special date to be fixed any day after 21st May. Gentle J. refused to fix a special date. Shortly afterwards, on 19th May, the suit was called on; the plaintiff's counsel asked for an adjournment for two days to enable plaintiff to come to Calcutta with his witnesses and offered to pay Rupees 800 in cash towards costs and also to pay any other costs which the learned Judge might direct. Gentle J. refused to grant an adjournment with the result that the plaintiff's counsel retired from the suit. It was then again called on, and as there was no appearance Gentle J. dismissed the suit. The plaintiff was then in Nagpur. Two days afterwards, on 21st May 1942, the plaintiff arrived in Calcutta. According to his affidavit he was informed of the circumstances under which the suit came to be dismissed. Apparently, he gave instructions to his attorney to apply to have the dismissal set aside and the suit restored because he says that before the affidavit could be made ready and affirmed by him he received a wire that his wife was sick and that he left for Bikaneer on 24th May 1942. He returned to Calcutta on 17th June 1942 and continued to take measures to have the dismissal set aside and the suit restored.

5. Under Article 163, Limitation Act, the plaintiff had thirty days in which to make his application from the date of dismissal. He had therefore time until 19th June 1942 - two days more. On 17th June, the plaintiff's attorney issued a notice to the defendant's attorneys as follows:

Please take notice that on Monday, 22nd day of June 1942, at the hour of 10-30 o'clock in the forenoon or so soon thereafter as counsel can be heard an application will be made to his Lordship the Hon'ble Gentle J. on behalf of the applicant Shree Chand Daga, the plaintiff abovenamed for an order that the dismissal of the suit be set aside.

6. The notice was served on the defendants' attorneys who acknowledged receipt of it the same day, namely, 17th June. The next day that notice together with an affidavit by a clerk of the plaintiff's attorney Ramanandlal, affirming that the notice of motion had been served upon the defendants' solicitors, were taken to the office of the Registrar of the original side of this Court on 18th June and handed to someone in the Registrar's office because on the notice of motion there are these words 'High Court, original side, 18th June 1942' put on with a rubber stamp. On 22nd June 1942, the matter did not come before the learned Judge as an adjournment was taken by one or both of the parties for the purpose of putting in further affidavits, with the result that the motion came on for hearing on 30th June, when Gentle J. heard it and dismissed the application on the ground that it was time-barred under Article 163 of Schedule I, Limitation Act. Section 3, Limitation Act, provides that subject to the provisions contained in Sections 4 to 25 (inclusive) (which are not material in this case) every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by Schedule 1 shall be dismissed although limitation has not been set up as a defence. Article 163 is as follows:

Time fromDescription of Period of which periodapplication. limitation. begins torun.------------------------------------------------By a plaintiff, for an Thirty days. The date of order to set aside a dis- dismissal,missal for default of ap-pearance or for failureto pay costs of service of process or to furnish security for costs.------------------------------------------------

7. Gentle J. held that he was bound by the decision in the case in Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 and that as the applicant did not make his application within thirty days of the date of dismissal, i.e., by 19th June 1942, the plaintiff was too late and was time-barred. The plaintiff has appealed from that decision and the matter has been strenuously argued by Mr. Isaacs who contends that Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 is not good law, that it has been doubted by Judges in this Court and has not been followed by Judges in the Madras and Bombay High Courts and is no longer binding on this Court. Mr. Isaacs contends that the filing of the notice of motion in the Registrar's office is an application within Article 163 and so saves the bar of limitation. Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 was decided by a Bench of three Judges sitting on the original side of this Court dealing with the matter which came from the Small Cause Court which is within the original jurisdiction of this Court. The judgment was delivered by Petheram C.J. on behalf of himself and his colleagues, Norris and Pigot JJ. Shortly that case decided that the taking out of a summons by a party calling upon the opposite party to attend a Judge in Chambers on the hearing of an application is the act of the applicant and not of the Court to which the application has been made and is not sufficient to save the application from being barred, if the hearing of the application comes on after the time, allowed by the Limitation Act for the application, has expired. It is not necessary to go into the details of that case; shortly they are these : money was paid to the Sheriff of Calcutta on 27th November 1889 and on Monday 28th November 1892, Khetter Mohun Sing took out a summons calling upon Kassy Nath Sett, the respondent, to attend the Judge in Chambers on 5th December on the hearing of the application for refund of the money. Article 178 of Schedule 2, Limitation Act of 1877 which applied in 1892 was as follows:

Description of applica- Period of Time fromtion. Limita- which periodtion. begins to run.--------------------------------------------------------Applications for which Three When the rightno period of limitation is years. to apply ac-provided elsewhere in this crues.schedule, or by the Codeof Civil Procedure, Section 230.---------------------------------------------------------

8. The period of limitation expired on 28th November owing to 27th November being a Sunday. The date when the matter came before the learned Judge was 5th December more than three years from the date when the right to apply accrued. The learned Judge to whom the application was made, Hill J. held that the application was time-barred. The Appellate Bench referred to, dismissed the appeal and said at p. 902 of the report as follows:

We think that the application was not made until 5th December and that the Judge was right in rejecting the application as barred by limitation. The summons to attend the hearing of the application is the act of the applicant only and is merely a notice, signed by the Registrar at his request, that the application will be made on the day mentioned, i.e. 5th December and is not the act of the Court receiving or taking cognizance of the application as would perhaps be the case if it were a rule nisi to show cause issued by the Court after hearing the statement of the applicant.... Under these circumstances, we think that no application was made to the Court until the application of 5th December which was made in pursuance of the notice given by the summons, and as that was more than three years from the time when the right to make it accrued, the learned Judge was right in rejecting the application, and this appeal must be dismissed.

9. Eleven years later in Hinga Bibee v. Munna Bibee ('04) 31 Cal. 150, Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 was followed by Sale J. The short facts of that case were that a suit was dismissed for want of prosecution by Harrington J. sitting on the original side of this Court on 10th August. Notice of motion to apply to have the dismissal set aside was given on 29th August. The date on which the application was intended to be brought was stated in the notice to be 3rd September but the application was not made then nor was the matter mentioned at any time until a day after the day on which the Court reopened after the long vacation,that is 19th November 1903. The learned Judge said:

It seems to me...the application is barred under Article 163, Limitation Act, because it was not e made within thirty days from the order of dismissal. The notice of motion which was given on 29th August 1903 does not prevent the law of Limitation from applying. That is laid down in Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 and inasmuch as the thirty days expired within the period of the vacation, the only course open to the plaintiff to avoid limitation was to mention the matter to the Court on its reopening day, which, as I have said was not done.

10. The result was that the application was refused. The two cases just cited were followed in this Court until 1933 when Lort-Williams J. in Jnanendrakumar Ray v. Amritakrishna Datta : AIR1933Cal886 doubted Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 and distinguished it. He drew attention to the fact that Costello J. in Atarmoni Dasi v. Bepin Behari : AIR1929Cal193 also doubted Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899. He also drew attention to a decision of an Appellate Bench of the Bombay High Court consisting of McLeod C.J. and Crump J. in Venkapaiya v. Nazerally Tyabally ('24) 11 A.I.R. 1924 Bom. 36 which refused to follow Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 and based its decision on In re Gallop and Central Queensland Meat Export Co., Ltd., an English case reported in (1890) 25 Q.B.D. 230. The decision which I have referred to in Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 that a summons to attend the hearing of an application is not the same thing as the application itself for the purposes of the Limitation Act, has stood for fifty years in this Court and is binding upon this Court until reversed by a Full Bench or the Privy Council. There would have to be very good reasons for refusing to follow such a decision. The dissenting cases which I have referred to have proceeded upon the authority of (1890) 25 Q.B.D. 230 which I have referred to. (1890) 25 Q.B.D. 230 followed previous English cases in which an effort was made to adjust the practice obtaining before the passing of the Judicature Act and the Rules framed under the Judicature Act of 1875.

11. We were also referred to the case in Kuttayan Chetty v. Ellappa Chetty ('07) 17 M.L.J.215 where the Madras High Court refused to follow Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 The Madras case appears to turn on the particular procedure adopted in the Madras High Court on its original side. In my view, the English cases are no guide in the present case, nor in my opinion is the Madras case. All those cases deal with the application of the rules of practice either in England or in Madras. The present case was decided on the original side of this Court. There are rules made for procedure generally on the original side. There is no specific rule dealing with the procedure in matters of setting aside the dismissal of a suit for default like Order 9, Rule 9, Civil P.C. Nevertheless, Order 9 is a guide for the exercise of the powers of this Court in its original jurisdiction in this matter. Section 1(2), Limitation Act, provides that the Act applies to the whole of India. Sections 29 and 30 of the Act contain certain saving provisions and exceptions which have no reference to the facts of this case; therefore Article 163, Limitation Act, is part of the general law of the land and, in my view, it applies on the original side of this Court. Article 163 is framed to meet all cases where steps are to be taken to set aside dismissal of suits in default.

12. In Courts in this province other than the High Court the procedure to have an order of dismissal of a suit for default of appearance set aside has been described by my colleague Lodge J. who is familiar with it, as follows : An application in writing, generally in Bengali, is handed by the plaintiff whose suit has been dismissed or by the plaintiff's pleader to the officer of the Court in Court when the Judge is sitting. That application asks for the setting aside of the dismissal. It is noted by the officer of the Court and recorded in the order sheet by the Judge who on the same day notes that the application was made and (if the defendant is not present to contest) directs notice of it to be served upon the erstwhile defendant at such time in such place and in such manner as seems to the Judge to be proper. The application is made in Court in the presence of the Judge who notes it there and then and decides it at once if the defendant is present to contest it, or later if the defendant is not present, at a time when the defendant does appear pursuant to the notice. As regards the procedure on the original side of this Court, the rules provide for some applications to be made by motion after notice to the parties affected. A motion is an application made to a Court or a Judge viva voce in open Court. But not every application is made by motion after notice; the rules provide for other applications. Chapter 20, Rule 3 provides:

Except where otherwise provided by statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in Chambers, shall be made on motion after notice to the parties affected thereby, unless, according to the practice existing at the time of the passing of these, rules, an order might be made absolute ex parte in the first instance; but the Court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief may make any order, ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court may think just, and any party affected by such order may move to set it aside.

13. Rule 4 provides:

A notice of motion shall be intituled in the suitor matter in which the application is intended to be made, and shall state the time and place of application, (and) the nature of the order asked for, with a note at foot specifying the grounds to be used in support of the application. It shall be addressed to the party or parties intended to be affected by it and their attorney or attorneys (if any) and shall be signed by the attorney of the party moving, or the party himself where he acts in person.

14. Rules 5 and 6 provide for cases where rules nisi are issued by the Court to show cause. Rule 7 provides:

Unless the Court or a Judge gives special leave to the contrary, there shall be at least four clear days between the service of a notice of motion and the day named for bringing on the motion. The notice of motion together with the affidavit or affidavits of service and the affidavits in support thereof shall be filed in the Registrar's office immediately after service of the notice, but not less than four days before the day named for bringing on the motion. Affidavits in answer or reply shall be filed in the Registrar's office not later than 4 p.m. on the day preceding the day named for the hearing, or, where such day is a Monday, not later than 1 p. m. on the previous Saturday.

15. Then follow other provisions. Rule 17 provides:

In the event of non-compliance with the provisions of R. 6 as to the filing of the rule and affidavit or affidavits of service, or in the event of non-compliance with the provisions of Rules 7 and 8 as to the filing of the notice of motion, and affidavit or affidavits of service and grounds of the party moving, the rule or motion, as the case may be, shall not, without the leave of the Registrar, be set down in the peremptory list of motions under Rule 29 of Chap. 10.

16. The normal procedure is by motion upon a notice of not less than four clear days. Leave of the Court may be obtained so that the notice may be less than four days; it may be a day or even, in an urgent case, part of a day. But where the matter is so urgent that a day's delay caused by proceeding in the ordinary way would or might entail irreparable loss the Court may make an order ex parte subject to the party affected having the right to come to the Court and have it set aside or modified. If the plaintiff's suit has been dismissed for want of prosecution and he comes into Court soon afterwards either himself or through counsel and makes an application then and there, the Judge may, after hearing him and the defendant, set aside the dismissal and restore the proceedings, or adjourn the application until the defendant can be heard. That is often done. It does not need any notice of motion; the application is made in Court at once. In other cases the application after notice of motion is the proper procedure. If, however, the plaintiff finds the time is running out he can and sometimes does apply in open Court ex parte and without notice for an order to set aside the order of dismissal subject to modification later at the instance of the other party; in such a case the Judge often takes note of the application and directs him to give notice to the other side to appear and to have the matter argued. In that event, the application saves the bar of limitation. To a diligent plaintiff there is no difficulty in proceeding by way of motion in the ordinary way. With regard to a plaintiff who allows time to go by without taking steps, or because of some unfortunate accident cannot move before very late, he may have a viva voce application made to the Court before the expiry of the time limited, and the bar of limitation is saved. This is frequently done. Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 decided that the application, not the taking out of the summons, must be made before the expiration of 30 days. In the present case the notice of motion is significant in its wording. It states:

Please take notice that on the 22nd day of June 1942 or as soon thereafter as counsel can be heard an application will be made to the Hon'ble Mr. Justice Gentle.

17. The notice of motion is simply a formal warning that an application will be made. The application itself is to come later. The word 'application' in its ordinary meaning is a 'request'; according to Wharton's Law Lexicon 'application' means 'a request, a motion to a Court or Judge; the disposal of a thing'. There is a clear difference between the warning of an application to be made later, and the application itself. The statute in this particular Article 163 prescribes that the application shall be made within 30 days of the date of dismissal. If words are to receive their ordinary meaning, the application - the request to the Court - must be made within 30 days of the date of dismissal; not merely the giving of notice of the application or the filing in the Registrar's office of the notice of the application - matters preparatory to the application which the Registrar may dispense with under Rule 17 - but the application itself.

18. In these matters it is necessary to give words their plain meaning. In my opinion the decision in Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 gave the word 'application' its plain meaning. Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 has been followed for 50 years and until, recently has not been doubted. Giving the word 'application' its plain meaning entails no difficulty or hardship for any one who takes the trouble to read Article 163 and make an actual application within 30 days from the dismissal. Other interpretations in other Courts have been put upon the word 'application' doubtless to meet the necessities of the practice in those particular Courts. There is no necessity in this Court to give the word 'application' other than its ordinary meaning. In my opinion the learned Judge was correct in following the decision in Khetter Mohun Sing v. Kassy Nath Sett ('93) 20 Cal. 899 and therefore I see no reason to refer the case to a Pull Bench. This appeal must therefore be dismissed with costs. Certified for two counsel. Mr. Isaacs has asked us to express an opinion as to what ought to have happened if the application to set aside the dismissal had been made in time. We are not in the position in which the learned Judge was, but it would seem probable that if the application had been made in time we should have allowed the appeal, set aside the dismissal and restored the suit on payment by the plaintiff of all costs thrown away on 19th May 1942 and of the application on 30th June 1942.

Lodge, J.

19. I agree.


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