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Surendra Nath Vs. Tarasashi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 913 of 1952
Judge
Reported inAIR1953Cal800,57CWN298
ActsLimitation Act, 1908 - Section 5
AppellantSurendra Nath
RespondentTarasashi
Appellant AdvocateJitendra Nath Ghose, Adv.
Respondent AdvocateManindra Nath Ghose, Adv.
Excerpt:
- .....that an ejectment order was passed by the small cause court judge. an appeal was filed to the special bench. it appears and cannot be contested from the papers on record that at the time when this ejectment decree was passed a formal decree as required under the code of civil procedure in the form prescribed thereunder was not drawn up in that court.indeed, till the high court pointed out that a formal decree was necessary in view of the changes introduced by the rent control act that the question of filing a decree ever arose. indeed, in the present case, the so called decree on record is what has been always known in the court of small causes, calcutta as an after-judgment statement and as it appears that there was never the practice of filing an after judgment statement in any.....
Judgment:

K.C. Chunder, J.

1. This is an appeal against an appellate judgment of the Special Appellate Bench of the Court of Small Causes, Calcutta, affirming that of the Judge, 6th Bench. It appears that an ejectment order was passed by the Small Cause Court Judge. An appeal was filed to the Special Bench. It appears and cannot be contested from the papers on record that at the time when this ejectment decree was passed a formal decree as required under the Code of Civil Procedure in the form prescribed thereunder was not drawn up in that Court.

Indeed, till the High Court pointed out that a formal decree was necessary in view of the changes introduced by the Rent Control Act that the question of filing a decree ever arose. Indeed, in the present case, the so called decree on record is what has been always known in the court of Small Causes, Calcutta as an after-judgment statement and as it appears that there was never the practice of filing an after judgment statement in any appeal in the Calcutta Court of Small Causes following the usual practice none such was filed. Having been told by this court the learned Judges of the Special Bench, it seems, blamed the poor lawyers of the court that they did not know, although the Rent Control Act was in existence for such a long time, that filing of a formal decree in the form prescribed by the Code of Civil Procedure was necessary. When Judges from whom the Bar is to receive light are in darkness themselves, it does not lie in the mouth of the judges to taunt the Bar for ignorance and penalise clients for alleged ignorance of the lawyers. The opinion of the Special Bench was that as the law was in existence for such a long time the lawyers should have known the law and they should have filed a non-existent decree in the form prescribed by Civil P. C. by taking the after judgment statement as an imitation decree under the Civil P. C. A little exercise of commonsense is always required in court proceedings and if commonsense had been exercised in this case time should have been extended and limitation condoned.

2. I, therefore, set aside the order of the Special Bench, extending the period of time under Section 5, Limitation Act nd as the appeal is now in time the Special Bench to which the appeal is remitted will now proceed to hear it on the merits. Courts will abide the result.

3. The appellate court will hear the appeal as expeditiously as possible.

4. Let the records be sent down without delay.


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