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Hari Saday Saha Vs. Mahendra NaraIn Raj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal267,155Ind.Cas.702
AppellantHari Saday Saha
RespondentMahendra NaraIn Raj
Cases ReferredSardhari Lal v. Ambika Pershad.
Excerpt:
- .....under order 21 was filed on 14th may 1925. on 15th august 1925 the order-sheet shows that the opposite party was ready, but the petitioner prayed for time to produce evidence and one sheikh habib, a civil court peon, was examined on behalf of the opposite party and discharged. the case was then adjourned until 5th september for hearing. on 5th september the opposite party was ready, but the petitioner again prayed for time to produce evidence and it was ordered that the case be put up on 12th september for hearing. on 12th september the order-sheet reads as follows:the petition of the auction purchaser as regards lot no. 15 is not opposed. a.p. adduces no evidence as regards lot no. 17 claimed by the c.p. mahendra n. raj. ordered the petition be allowed as regards lot no. 16 and the.....
Judgment:

Lort-Williams, J.

1. This appeal arises out of a title suit brought by the plaintiff appellant after his Miscellaneous Case under Order 21, Rule 97, Civil P.C., was dismissed. The only point raised before us is upon the question of limitation. The petition under Order 21 was filed on 14th May 1925. On 15th August 1925 the order-sheet shows that the opposite party was ready, but the petitioner prayed for time to produce evidence and one Sheikh Habib, a civil Court peon, was examined on behalf of the opposite party and discharged. The case was then adjourned until 5th September for hearing. On 5th September the opposite party was ready, but the petitioner again prayed for time to produce evidence and it was ordered that the case be put up on 12th September for hearing. On 12th September the order-sheet reads as follows:

The petition of the auction purchaser as regards Lot No. 15 is not opposed. A.P. adduces no evidence as regards Lot No. 17 claimed by the C.P. Mahendra N. Raj. Ordered the petition be allowed as regards Lot No. 16 and the A.P. be put in possession of the same. The petition is disallowed as regards Lot No. 17. The opposite party will get costs with pleader's fee Rs. 4.

2. This order was signed by the Pleaders of the parties, Mr. G.P. Roy and Mr. D. Banerjee. The learned Advocate for the appellant has argued that this proceeding was not an investigation such as is contemplated by Order 21, Rr. 97, 98 and 99, Civil P.C., and he has referred us to several cases in which a distinction was drawn between a proceeding under these sections which was dismissed for default and one in which an order was made after investigation. He has argued further that it there has been no such investigation, then the order made must have been on default, that such an order is not one which is contemplated by Aft. 1.1-A, Lim. Act, and therefore he is not restricted to the 12 months, mentioned in that Article, during which he must institute his suit. His argument seems to amount to this, that because the auction purchaser adduced no evidence with regard to Lot No. 17, and because his petition as regards Lot No. 16 was not opposed therefore there was no inquiry or investigation by the Court within the meanings of those sections and, in effect, the order was passed in default of appearance. I am at a loss to understand how this argument can be justified. To begin with, one witness was called and examined by the opposite party and was discharged. Further, with regard to Lot No. 16, the opposite party raised no opposition and therefore it was wholly unnecessary to hear evidence with regard to that lot. As regards Lot No. 17, the auction-purchaser himself told the Court that he did not wish to adduce evidence. Yet the learned Advocate says that unless the Court demands evidence in such circumstances, it cannot be held to be an investigation within the meaning of the section. All that I need say is that, in my opinion, in the circumstances to which 1 have referred, there was clearly an investigation or an inquiry by the Court and an order made thereon. The learned Advocate sought to show by the form of the order-sheet itself that his client was not present but the statement that the auction purchaser adduced no evidence clearly means that he was present, either himself or by his pleader, and either he or his pleader told the Court that he did not desire to adduce evidence with regard to Lot No. 17. There is no substance in the contentions raised by the learned Advocate and this appeal must accordingly be dismissed with costs.

M.C. Ghose, J.

3. Having regard to the case of Sardhari Lal v. Ambika Pershad. (1888) 15 Cal 521, there is, in my opinion, no doubt that there was sufficient investigation in this case so as to bring it under Article 11-A, Lim. Act. I agree that this appeal should be dismissed.


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