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Madha Ram Gaonbura and anr. Vs. Mt. Tupoo Rubhani and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal319,129Ind.Cas.778
AppellantMadha Ram Gaonbura and anr.
RespondentMt. Tupoo Rubhani and anr.
Cases ReferredAmir Hassan Khan v. Sheo Bahsh Singh
Excerpt:
- .....appearance. on 7th march 1929 the plaintiff made an application under the provisions of order 9, rule 9, civil p. c, that the order of dismissal should be set aside. the learned munsif by an order dated 5th august 1929 set the order of dismissal aside as prayed. it is alleged that in so doing he has exercised his jurisdiction illegally and with material irregularity. it is also said that he was in error in coming to the conclusion that the petitioners before him had good and sufficient grounds for not making the application on a date prior to 7th march 1929. now it is conceded that prima facie the application of 7th march was out of time. the article of the limitation act which applies to these applications is article 163 which prescribes a period of 30 days running from the date of.....
Judgment:

Panckridge, J.

1. This is a rule obtained by the defendants in the following circumstances: An ex parte decree was obtained against them which they succeeded in having set aside by an order dated 17th December 1928. The suit came on for hearing on 17th January 1929 but was dismissed for default of appearance. On 7th March 1929 the plaintiff made an application under the provisions of Order 9, Rule 9, Civil P. C, that the order of dismissal should be set aside. The learned Munsif by an order dated 5th August 1929 set the order of dismissal aside as prayed. It is alleged that in so doing he has exercised his jurisdiction illegally and with material irregularity. It is also said that he was in error in coming to the conclusion that the petitioners before him had good and sufficient grounds for not making the application on a date prior to 7th March 1929. Now it is conceded that prima facie the application of 7th March was out of time. The article of the Limitation Act which applies to these applications is Article 163 which prescribes a period of 30 days running from the date of the dismissal of the suit. It has not been urged that there are any provisions in the Limitation Act or elsewhere that confer jurisdiction on the Court to extend the time beyond the period prescribed by the Act. In the case of Ajodhya Mahton v. Mt. Phul Kuer A.I.R. 1922 Pat. 479 it was definitely held that in the case of an ex parte decree when the period of limitation had expired the Court had no inherent jurisdiction to set it aside. I think the same considerations apply to an application under Order 9, Rule 9, Civil P.C. The learned advocate for the opposite party does not maintain that the application was made within the proscribed period but he says that Kitting in revision it is not open to me to set the learned Munsif's order aside inasmuch as it is not a case to which the provisions of Section 115, Civil P. C, apply and he has referred me to a decision of Fletcher, J., sitting on the original side of this Court, namely, the case of Ram Gopal v. Jaharmall Khemka [1912] 39 Cal. 473 where the learned Judge refused in exercise of power conferred upon by Section 115, Civil P.C., to set aside a decree of the Small Cause Court. I think that ease is distinguishable. There the learned Judge as far as I can understand had erroneously construed certain documents tendered by the plaintiff in such a fashion as to give the plaintiff's claim a fresh period of limitation. That seems to me to be a different case from the present. It is one thing to misconstrue the Limitation Act or certain documents in such a way as to hold that either limitation has not expired or that a new period of limitation has begun to run and quite another thing to extend the period of limitation in a manner which the law does not contemplate. The same consideration appears to me to apply to the case of Sundar Singh v. Doru Shankar [1897] 20 All. 78 which was again a case of misconstruing statutory provisions and also to the leading case decided by their Lordships of the Judicial Committee of the Privy Council, namely, the case of Amir Hassan Khan v. Sheo Bahsh Singh [1885] 11 Cal. 6.

2. I have carefully read the order of the learned Munsif and it appears to me that taking into consideration certain circumstances which appeared to him to operate harshly against the plaintiff he took upon himself to extend the period of limitation from some time in the middle of February to the 7th March. I do not think he had any jurisdiction to do that and that his order is subject to revision under the provisions of Section 115 Civil P. C, for that reason. If he had considered the Limitation Act and construed it in such a way as to hold that owing to the plaintiff's right to exclude certain days for one reason or another the period of 30 days had not, in fact, expired within the terms of the Act on 7th March that would have been a different matter. But I am clear the learned Munsif exercised a discretion which was not vested in him under the law to extend the time.

3. I think for this reason the rule must be made absolute and the order' complained of set aside. The petitioner before me is entitled to the costs of the rule which I assess at one gold mohur.


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