Chittaranjan Das v. Sanhita Das — 1980 DIGILAW 408 (CAL)

JUDGMENT (1.) THE petitioner tenant had filed an application before the learned Munsif under order 9 rule 13 of the Code of Civil Procedure, giving certain explanation for his absence on the date the suit was called on for hearing resulting in an ex parte decree being passed on the 23rd of April, 1974 in the Title Suit No. 182 of 1971. The application under order 9 rule 13 was made on 5.6.74 and the same was registered as Misc. Case No. 104 of 1974. Soon after the Misc. Case Ho. 104 of 1974 was filed, the petitioner filed an application under section 151 of the Code of Civil Procedure praying that his application under order 9 rule 13 of the Code of Civil Procedure may also be treated as an application under Section 151 of the Code of Civil Procedure. The learned Munsif passed cryptic order holding that the application having been filed beyond 30 days of passing of exparte decree and hence it was barred by limitation. He also rejected the application made by the petitioner under section 151 of the Code of Civil Procedure for treating the application under Order 9 rule 13 of the Code of Civil Procedure as an application under section 151 of the Code of Civil Procedure. It will be seen however, that this point taken by the learned Advocate far the petitioner before the learned Munsif was that his application under order 9 rule 13 of the Code of Civil Procedure was with -in time having been filed within 30 days from date of knowledge of the exparte decree passed by the learned Munsif. Thereafter, the petitioner went up in appeal against the order rejecting his application under order 9 rule 13 of the Code of Civil I Procedure and in appeal also he took the same plea that his application was within time upon interpretation of Article 23 of the Limitation Act. The learned Judge dismissed the appeal of the petitioner. Against the said order of dismissal passed by the learned Subordinate Judge the petitioner has moved this Court Under Section 115 of the Code of Civil Procedure. (2.) MR. Satyendra Prasad Sen, appearing for the petitioner has drawn my attention to the application filed by the petitioner' before the learned Munsif wherein he gave an explanation for not appearing on the date fixed for hearing of the suit. (2.) MR. Satyendra Prasad Sen, appearing for the petitioner has drawn my attention to the application filed by the petitioner' before the learned Munsif wherein he gave an explanation for not appearing on the date fixed for hearing of the suit. He also gave an explanation as to why the delay was caused in filing the application under order 9 rule 13 of the Code of Civil Procedure. That would appear from paragraph 5 of his application under order 9 rule 13 of the Code of Civil Procedure. It was stated on behalf of the petitioner that the petitioner being aggrieved by an order dated 5.7.72 under sees. 17 (2) and 17 (2) (a) (b) of the West Bengal Premises Tenancy Act moved the Hon'ble High Court and obtained a Rule being C. R. No. 3758 of 1972 and got a stay of all proceedings in Title Suit No. 182 of 1971. The petitioner further stated that the Rule was discharged in C. R. 3758 of 1972 but he was not informed about this by his learned Advocate of the High Court. He was not even informed about the date of posting of title suit for hearing. Unfortunately for the petitioner on account of his ill health and other personal difficulties he could not contact his learned Advocate who was conducting his case in the High Court to get the necessary information. But when he recovered he contacted his learned Advocate in the High Court on the 31st of May, 1974 and came to learn for the first time that his revisional application being C.R. 3758 of 1972 was disposed of and he was asked to make enquiries about his case in the lower court. He made enquiries on 1. 6. 74 in respect of Title Suit No. 182 of 1972 and came to learn for the first time that the suit was decreed exparte on 23.4.74. The petitioner pleaded that Since he had no knowledge of discharge of the Rule in the High Court, he could not instruct his learned Advocate in the Trial Court to take steps in Title Suit No. 182 of 1972 until 1.6.74. That is the reason for his non-appearance on 23.4.74 and for the delay in filing the application under order 9 rule 13. The same grounds were taken before the learned lower appellate court. That is the reason for his non-appearance on 23.4.74 and for the delay in filing the application under order 9 rule 13. The same grounds were taken before the learned lower appellate court. But at the time of hearing of the appeal it was urged on behalf of the appellant/petitioner that his application under order 9 rule 13 of the Code of Civil Procedure was not out of time on interpretation of Article 123 of the Limitation Act. The learned lower appellate court rejected the contention of the petitioner and found that the application under order 9 rule 13 having been filed on 5.6.74. It is clearly beyond time and hence dismissed the appeal of the petitioner. Mr. Sen, the learned Advocate appearing for the petitioner in this Rule has contended that although the petitioner did not make an application under section 5 of the Limitation Act praying for condonation of delay in filling the application under order 9 rule 13 of the Code of Civil Procedure, the materials on record show that there were reasons for the petitioner for coming to court so late. He has given an explanation for the delay so coming to court and it was incumbent upon the learned Munsif as well as the learned lower appellate court to consider his application for the delay though there was no such prayer not even an omnibus prayer for condoning the delay. In this connection Mr. Sen has relied on a decision of the Punjab High Court reported in AIR 1959 Punjab 646. (Firm Kaura Mai Bishan Dass vs. Firm Mathra Dass Atma Ram, Ahamedabad.) The relevant passage is at page 648, paragraph 10. He relied upon the following observation of the learned Judge : "merely because there is no written application filed by the appellant it was hardly sufficient ground for refusing the relief if he was otherwise entitled to. It has frequently been held that procedure is meant for advancing and not for obstructing the cause of justice and if the entire materials on record as in the present case it obviously was, it could not promote the ends of justice if that material was ignored and the relief refused to the appellant merely because he had not claimed if by means of a formal application in writing or a formal affidavit was not filed. The language of section 5 of the Limitation Act does not provide that an application in writing must be filed before relief under the said provision can be granted". (3.) MR. Samaresh Banerjee, learned Advocate appearing for the opposite party has strenuously argued that it is no part of the duty of the court to give a relief that was not prayed for. On the contrary the learned advocate for the petitioner in both the courts below had taken the stand that the application under order 9 rule 13 of the Code of Civil Procedure was within time, under Article 123 of the Limitation Act There was no whisper anywhere for condoning the delay in filing the application under order 9 rule 13 of the Code of Civil Procedure nor even an omnibus prayer to that effect either in the application under order 9 rule 13 of the Civil Procedure Code or even in the subsequent application under section 151 of the Code of Civil Procedure praying for treating the application under order 9 rule 13 as an application under section 151 of the Code of Civil Procedure. Further Me; Banerjee has argued that even if the explanation is taken into account it does not explain the whole of the period of delay. The application was made for setting aside the exparte decree on the 5th of June, 1974. Although the petitioner had knowledge on the 31st of May, 1974 from his learned Advocate in the High Court after case i.e. C. R. 3758 of 1972, was disposed of by the High Court. On the 1st of June, 1974 he came to his learned Advocate on record in Title Suit No. 182 of 1971 that the suit had been decreed exparte ana" he filed an application for setting aside the exparte decree on 5. 6. 74. He did not explain the 4 (four) days from 1. 6. 74 to 5. 6. 74 of, the delay. On this ground alone according to Mr. Banerjee the application even if treated under section 5 of the Limitation Act is liable to be rejected. (4.) NEXT, it has been argued by Mr. Banerjee that no duty is cast on the court to suo motu give a relief to the petitioner when not prayed for by him. Mr. Banerjee, however, concedes on the basis of the decision cited by Mr. (4.) NEXT, it has been argued by Mr. Banerjee that no duty is cast on the court to suo motu give a relief to the petitioner when not prayed for by him. Mr. Banerjee, however, concedes on the basis of the decision cited by Mr. Sen that it is not necessary to make a, formal application under section 5 of the Limitation Act to pray for condonation of delay, The court's attention, however, must be drawn to this aspect of the matter. In this case, however, in both the appeal as I have already pointed out the plea taken by petitioner's advocate was that the application was within time and therefore, the courts were right in disposing of the petitioner's application on the basis of the arguments of the learned advocate. In such case it cannot be said that justice has been denied to the petitioner when his advocates who are competent, took a contrary plea before the learned munsif as well as the lower appellate court. Mr. Banerjee has stressed upon the provisions of section 5 of the Limitation Act and has argued that it is for the petitioner to satisfy the court that he has sufficient cause for not preferring his application within the prescribed period. In this case the petitioner never took up this plea that he has sufficient cause for the delay as already observed by me. In this connection the case referred to by Mr. Banerjee reported in AIR 1919 Calcutta 958 is worthy of note. At page 959 of the said report it has been observed that the appellant is hot entitled as a matter of right to a deduction of the period during which the application for review remained pending in the court below. He has to seek extension of time under section 5 of the Limitation Act-in other words to satisfy the court that he has sufficient cause for not preferring the appeal within the prescribed period. He is consequently under an obligation to explain satisfactorily why he did not came to court within time and further why he did not apply for extension of time. This he has completely failed to do. Accordingly, the appeal of the appellant in that case was dismissed. (5.) NEXT Mr. He is consequently under an obligation to explain satisfactorily why he did not came to court within time and further why he did not apply for extension of time. This he has completely failed to do. Accordingly, the appeal of the appellant in that case was dismissed. (5.) NEXT Mr. Banerjee has argued that if the party prays for condonation of delay he should first admit that there has been delay so far as that application is concerned. He has cited a case reported in AIR 1968 Calcutta 69. The relevant passage is at ' page 74 paragraph 20 I may quote the following observation of His Lordship, Mr. Justice S. P. Mitra as he then was. "i wish to observe that the petition in the instant case does not appear to me to be a petition for condonation of delay simplicitor on the contrary the petitioner's primary contention is that he is within time and petitioner wanted the court to accept that view. Assuming that his view is not correct the petitioner submits the delay should be condoned inasmuch as the erroneous advice was given to him. In my opinion, the petition for condonation of delay cannot be made in that form. If the petitioner wants that the delay should be condoned, he should frankly admit that the petition is barred". in this case there is no such prayer even if it is held that the petition is out of time the court should alternatively/consider whether it should condone the delay in filing the application under order 9 rule 13. The case reported in AIR 1926 Patna page 73 has been cited by Mr. Samaresh Banerjee in this case it has been held that a petition filed out of time must show on the face of it the reasons for the delay and there must be further an express prayer for condonation of delay under this section. This decision runs contrary to the decision reported in AIR 1959 Punjab page 646 (Supra). Though the attention of His Lordship who decided the case in AIR 1959 Punjab has not been drawn to this decision, I am inclined to hold in favour of the principle laid down in the Punjab case that it is not necessary that the delay cannot be condoned without an application under section 5 of the Limitation Act. Even Mr. Though the attention of His Lordship who decided the case in AIR 1959 Punjab has not been drawn to this decision, I am inclined to hold in favour of the principle laid down in the Punjab case that it is not necessary that the delay cannot be condoned without an application under section 5 of the Limitation Act. Even Mr. Banerjee had to concede that section 5 of the Limitation Act does not provide for making such an application. It may be condoned on oral prayer of the party. But for other reasons I must hold that the present application is not maintainable, in view of the fact that it was not even prayed orally before the Courts below that the delay be condoned, On the contrary it was argued on behalf of the petitioner in both the courts below that the application was within time. (6.) ON this ground alone the judgment passed by the lower appellate court is upheld and the Rule is accordingly discharged. There will be no order for costs. Let the records go down immediately.