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Kaka Ram Vs. Prabha Shankar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Misc. Petn. No. 44 of 1982
Judge
Reported inAIR1986J& K6
ActsJammu and Kashmir Limitation Act, 1995 - Section 5 - Article 168; ;Jammu and Kashmir Code of Civil Procedure (CPC) , 1977 - Order 41, Rule 19
AppellantKaka Ram
RespondentPrabha Shankar
Appellant Advocate J.S. Kotwal, Adv.
Respondent Advocate H.L. Bhagotra, Adv.
DispositionApplication dismissed
Cases ReferredMadan Lal v. State of U.P.
Excerpt:
- .....into consideration.6. on consideration of the aforesaid authorities i am inclined to hold that the date dismissal of the appeal occurring in article 168 of the limitation act will be the date of actual dismissal of the appeal and not the date of knowledge of dismissal of the appeal. the words 'from the date of dismissal of the appeal' occurring in article 168 of the limitation act framed by the legislature are to be interpreted in their plain meaning and they cannot be construed to mean that these words have some other meaning and they cannot be construed to mean the date of knowledge of the dismissal. if that were so legislature would have, as in article 164 of the limitation act, specifically mentioned the date of knowledge of the order also in the alternative. therefore, the authority.....
Judgment:
ORDER

M.L. Bhat, J.

1. This application under Order 41 Rule 19 Civil P.C. for the re-admission of the appeal, dismissed in default by this Court on 24-2-1981 for non-prosecution, is made on 10-3-1982 after more than a year.

2. It appears that a Civil Second Appeal titled Kaka Ram v. Prabha Shankar was pending in this Court for adjudication. On 13-12-1979 Mr. R. N. Bhalgotra had appeared for Mr. Baldev Singh learned counsel for the appellant. The appeal was adjourned because Mr. Baldev Singh was reported to be busy with the elections. Thereafter the case was adjourned and came up before the Deputy Registrar on 14-2-1980. It had come up before him on 14-3-1980 and 25-4-198l (1980?). It was adjourned to 23-2-1981. On all these dates learned counsel for the appellant was not present. On 24-2-1981 Anand J., as his Lordship then was, passed the order which reads as under : --

'The case has been called repeatedly but nobody has appeared on behalf of the appellant. No request has been made for adjournment either. The case is accordingly dismissed in default of appearance and non-prosecution. The stay granted shall stand vacated.'

3. It is in these circumstances that the present CMP is filed. The learned counsel for the respondent has taken an objection that the application is barred by limitation. Under Article 168 of the Limitation Act period prescribed for moving an application under Order 41 Rule 19 Civil P.C. is thirty days from the date of dismissal of the suit and Mr. Bhalgotra appearing for the respondent submits that since the application has been made after more than a year, therefore, the application is hopelessly barred. He submits that from the words 'from the date of dismissal' occurring in Article 168 of the Limitation Act is from the date of actual dismissal and not from the date of knowledgeof dismissal. In support of his contention he has relied on Municipal Board v. State Transport Authority, AIR 1965 SC 458, Ram Shankar v. Lalta Prasad AIR 1964 All 124, Kanai Lal Shaw v. Bhattu Shaw, AIR 1961 Cal 474 and has referred to Rules 11, 17 and 19 of Order 41 Civil P.C. in order to show the scheme of Order 41 as in his opinion these Rules are in pari materia with the Rules contained in Order 9 C.P.C. Rule 17 of Order 41 provide that when on the date fixed or any other date to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make the order that the appeal be dismissed. Sub-rule (2) of this Rule provides that if the respondent does not appear and the appellant appears the appeal shall be heard ex parte. An appeal can be dismissed under Rules 11 and 18 Order 41 C.P.C. and dismissal of appeal under the aforesaid rules is to be remedied by Rule 19, of Order 41 C.P.C. if the appellant makes an application to the appellate Court for re-admission of the appeal and it is shown that he was prevented by a sufficient cause from appearing in the Court. The authority reported in AIR 1965 SC 458 (Supra) is an authority under the Motor Vehicles Act and it lays down the broad principle and says that 'date of the order in Section 64-A of the Motor Vehicles Act should not be read as from the date of the knowledge of the Order.' It further says that in the absence of clear indication to that effect the Court is bound to hold that the application will be barred unless made within thirty days from the date of the order by which the person is aggrieved. AIR 1964 All 124 (Supra) says that where the appeal is dismissed and the application is made under Order 41 Rule 19 C.P.C. the application must be made within thirty days from the date of dismissal and application filed beyond the period of limitation prescribed under Article 168 L. A. will be liable to be rejected AIR 1961 Cal 474 (Supra) is an authority dealing with Order 9 Rule 9 C.P.C. In this authority application for restoration of a suit was dismissed on the ground of limitation and the appeal was taken to the Division Bench and the Division Bench also dismissed the appeal as in the opinion of the Division Bench there was no sufficient cause for restoration of the suit because the application was filed beyond the period of limitation.

4. Learned counsel for the petitioner has invited my attention to an authority viz. Madan Lal v. State of U.P. AIR 1975 SC 2085. Their Lordships of the Supreme Court in that case which had arisen out of the Forest Act had the occasion of giving meaning to date of order. Their Lordships have held that it means date of knowledge of the order when the order is passed without notice to the appellant. AIR 1965 SC 458 (Supra) was distinguished in this authority and the earlier authority reported in AIR 1961 SC 1500 was relied upon. This authority was in respect of a case arising out of Land Acquisition Act and date of order was construed as date of knowledge of order of award when the award was published at the back of the person.

5. The application under Order 41 Rule 19 C.P.C. in the present case is supported by an affidavit of Th. Baldev Singh Advocate District Court Kathua. In para 3 he has stated that the date of hearing fixed for 24-2-1981 was not intimated to him. A correction is made in hand in this para indicating immediately after 24-2-1981 or for 23-2-1981. This correction is unsigned therefore I shall not take this correction into consideration.

6. On consideration of the aforesaid authorities I am inclined to hold that the date dismissal of the appeal occurring in Article 168 of the Limitation Act will be the date of actual dismissal of the appeal and not the date of knowledge of dismissal of the appeal. The words 'from the date of dismissal of the appeal' occurring in Article 168 of the Limitation Act framed by the legislature are to be interpreted in their plain meaning and they cannot be construed to mean that these words have some other meaning and they cannot be construed to mean the date of knowledge of the dismissal. If that were so legislature would have, as in Article 164 of the Limitation Act, specifically mentioned the date of knowledge of the order also in the alternative. Therefore, the authority in AIR 1975 SC 2085 (Supra) is distinguishable as the facts of that authority arise in somewhat different circumstances. The important circumstances in that case was that the order was passed at the back of the appellant and he had not presented himself before the Forest Officer. Therefore, the Supreme Court explained their authority AIR 1965 SC 458. (Supra) because in that case the order waspassed to the knowledge of the appellant. Obviously that authority would not cover the facts of the case with which their Lordships of the Supreme Court were dealing in AIR 1975 SC 2085 (Supra). AIR 1961 SC 1500 (Supra) was also an authority in which the award was passed without the notice and knowledge of the aggrieved person. Land Acquisition Act contains a provision that award must be passed in presence of the party to the award. That was not done. Therefore, the Supreme Court was inclined to hold that when the award was passed without notice to a person and at his back, the date of award would mean date of knowledge of the award for purposes of filing of the appeal. In the instant case, from the perusal of the record, it appears that the appellant had knowledge of the date and he was present on 13-12-1979 through Shri R. N. Bhalgotra Advocate when the appeal was adjourned for personal reasons of Thakur Baldev Singh. As an appellant he should have been cautious to enquire about the date fixed in the appeal which was adjourned a number of times. As the appellant, it was his duty to be vigilant and cautious but unfortunately he has not cared to enquire from the Registry as to what has happened to the appeal filed by him. Th. Baldev Singh though a Kathua based lawyer is practising lawyer of this Court also. It is stated by the respondent in his objections that he is attending this Court occasionally. After the elections were over in January 1980, he should have enquired about the case or should have advised his client to seek information about the appeal. Therefore it cannot be said that he was vigilant.

7. Mr. Kotwal has urged before me that the date of knowledge would be the starting point of limitation and according to him he has acquired the knowledge on 6-3-1982. He submits that he would be entitled to make the application within one month from 6-3-1982 and if that be so, his application is within time because he has filed the same on 10-3-1982 in the Registry. This contention of the learned counsel cannot be accepted because admittedly the application on 6-3-1982 was also time barred. Assuming that he got the knowledge on 6-3-1982 that would not afford him fresh period of limitation from 6-3-1982. Limitation in the present case has started from the date of dismissal of the appeal. Even if it is considered that he got knowledge on 6-3-1982 i.e. beyond the period of limitation prescribedfor filing the application, in that case he should have moved the application on 6-3-1982. Four days delay from 6-3-1982 to 10-3-1982 is not explained in the application or in the affidavit of Th. Baldev Singh advocate by the appellant. The appellant was bound to explain the delay made after the period of limitation of each day. If the contention of the appellant is accepted that the period would start from 6-3-1982 and would last for thirty days that would be repugnant to the context.

8. That the appellant was well within his rights to move an application Under Section 5 of the Limitation act seeking condonation of delay and showing sufficient cause as to why he was prevented from filing the application within the period of limitation. He has made an halfhearted attempt to explain the delay in his application probably under the mistaken notion of law that the period of limitation would start from 6-3-1982 when he acquired the knowledge of dismissal of the appeal. Having failed to explain the inordinate delay limitation cannot be extended.

9. For the reasons stated above, I hold that this application is barred by time and is liable to be dismissed on that count alone. I accordingly dismiss the application leaving the parties to bear their own costs.


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