Life Insurance Corporation of India v. Mirta Lina Pvt. Ltd.
2001-03-08
Bhaskar Bhattacharya
body2001
DigiLaw.ai
JUDGMENT Bhaskar Bhattacharya, J. This revisional application under section 115 of the Code of Civil Procedure is at the instance of a respondent in an appeal under section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 ("Act") and is directed against Order No AO dated January 3, 2001 passed by the learned Chief Judge, City Civil Court in Miscellaneous Appeal No.1 of 2000 thereby allowing an application under section 5 of the Limitation Act for condonation of delay of 1460 days in the preferring such appeal. 2. The following facts are not in dispute An order of eviction of the opposite party was passed on January 11, 1996 by the Estate Officer under section 4 of the Act. Instead of preferring a statutory appeal under section 9 of the Act, the opposite party moved a writ application before this court in the month of January 1996 challenging the said order of eviction on various grounds. This court initially entertained such writ application but in the long run the same was dismissed on May 21, 1997 by S. B. Sinha, J (as His Lordship then was). The opposite party preferred a mandamus appeal before a Division Bench of this court which was ultimately dismissed on August 24, 1999. Against the order of the Division Bench dated August 24, 1999, the opposite party preferred a special leave application before the Supreme Court which was however dismissed on September 24, 1999. Thereafter on January 28, 2000, the opposite party preferred the statutory appeal under section 9 of the Act before the learned Chief Judge, City Civil Court against the original order of eviction dated January 11, 1996 along with an application under section 5 of the Limitation Act for condonation of delay of about 4 years. 3. The sum and substance of the case made out in the application under section 5 of the Limitation Act was that instead of preferring the appeal, the opposite party on the bona fide advice of the learned counsel wrongly approached the writ jurisdiction of this Court and unsuccessfully pursued the wrong forum up to the Apex Court till September 1999. After the dismissal of the application of special leave, on the advice of its counsel practising in the Apex Court, the opposite party preferred the appeal.
After the dismissal of the application of special leave, on the advice of its counsel practising in the Apex Court, the opposite party preferred the appeal. However, from September 1999, one of the directors of the opposite party who was actually looking after its case had fallen seriously ill as a result the appeal was preferred four months after the dismissal of the special leave application. 4. The said application was contested by the petitioner thereby disputing the bona fides of the opposite party and opposing the prayer for condonation. 5. The learned court below by the order impugned herein allowed the prayer for condonation on condition that the opposite party would pay a sum of Rs.2001/- as costs to the petitioner. 6. Being dissatisfied, the petitioner has come up with the instant application. 7. Mr. Chatterjee, the learned counsel appearing on behalf of the petitioner has made twofold submissions before this Court. 8. First, Mr. Chatterjee contends that the learned court of appeal below acted illegally and with material irregularity in giving benefit of section 14 of the Limitation Act and in excluding the period spent by the opposite party from the date of filing of the writ application till the date of rejection of the special leave application. According to Mr. Chatterjee, benefit of section 14 of the Limitation Act is not available to an appellant in preferring an appeal; such benefit, Mr. Chatterjee proceeds, can be availed of only in filing a suit or an application. Mr. Chatterjee further contends that even other ingredients of section 14 are absent in this case. In support of such contention Mr. Chatterjee has placed a number of decisions of different courts. 9. Secondly, Mr. Chatterjee contends that the conduct of the opposite party in proceeding with the writ application cannot be said to be bona fide and there was no sufficient material available on record to conclude that on the bona fide advice of the counsel the opposite party approached a wrong forum. Mr. Chatterjee further submits that after the dismissal of the writ application there was no valid reason for preferring the mandamus appeal and thereafter the special leave application and therefore the court below erred in law in condoning the delay. 10. After hearing the learned counsel for the parties and after going through the materials on record, I am at one with Mr.
10. After hearing the learned counsel for the parties and after going through the materials on record, I am at one with Mr. Chatterjee that the benefit of section 14 of the Limitation Act cannot be given for the purpose of condonation of delay in preferring an appeal; power of exclusion mentioned in section 14 can be invoked only for a suit or an application and for the above purpose the word "suit" does not include an appeal. [See section 2(1) of the Limitation Act]. 11. Therefore, although the benefit of section 14 of the Limitation Act could not be availed of by the opposite party, the learned court of appeal below specifically conferred such benefit to the opposite party .However , before exercising such power, the court of appeal below on consideration of the materials on record arrived at a finding after giving detailed reason that the opposite party on the basis of wrong advice of the counsel preferred the writ application and went up to the Apex Court and that there was no lack of due care in prosecuting such wrong forum. In my view, the aforesaid finding of fact recorded by the court below alone could enable the court to give relief of condonation in favour of the opposite party under section 5 of the Limitation Act notwithstanding the fact that the court could not grant relief under section 14 thereof. After all, section 5 is broader in its sweep than section 14(See Ramlal and Ors. vs. Rewa Coalfields Limited, AIR 1962 SC 361 ). 12. In this connection reference may be made to the decision of the Apex Court in the case of State of West Bengal vs. The Administrator, Howrah Municipality and Ors., reported in AIR 1972 SC page 749. In the said case, instead of preferring regular first appeal before High Court against the order of the learned Additional District Judge in a proceeding for reference under Land Acquisition Act, the Government raised objections under section 47 of the Code when the award was put into execution. The said application under section 47 of the Code having been dismissed, a revisional application under Article 227 of the Constitution of India was filed by the State and the same was entertained.
The said application under section 47 of the Code having been dismissed, a revisional application under Article 227 of the Constitution of India was filed by the State and the same was entertained. During the pendency of such application, the State woke up from the slumber and preferred a regular appeal before High Court against the award along with an application under section 5 of the Limitation Act for condonation of delay of more than one year on the ground that due to wrong legal advise, the State proceeded in a wrong forum by filing application under section 47 of the Code and the application under Article 227 of the Constitution of India. Although the Division Bench of this court rejected the prayer for condonation, the Supreme Court held that it was a case of giving bona fide wrong advice and the same constituted "sufficient cause" within the meaning of section 5 of the Limitation Act. 13. In the present case, immediately after the order of eviction was passed, the opposite party filed the writ application. Such application was not summarily rejected but was entertained and stay of dispossession was ordered till the disposal of the application. Against the order of Sinha, J when an appeal was filed, a Division Bench granted stay of the order of eviction and that continued till the disposal of the appeal. The appeal was pending for more than two years. Therefore, under such circumstances the learned court of appeal below was not prepared to accept the contention of the petitioner that the earlier proceedings were not the result bona fide legal advice or that there was lack of due care on the part of the opposite party in proceeding before a wrong forum. 14. It is now settled law that if in giving relief to a litigant a court mentions a wrong provision of law, for that reason alone, the order cannot be declared invalid if such order is otherwise within the power of the court making it.
14. It is now settled law that if in giving relief to a litigant a court mentions a wrong provision of law, for that reason alone, the order cannot be declared invalid if such order is otherwise within the power of the court making it. (See State of Karnataka vs. Krishnaji Srinivas Kulkarni and Ors.,1994 (2) SCC 558; See also State of Karnataka vs. Muniyalla, AIR 1985 SC 470 ).Therefore, once the court below held on appreciation of materials on record that the opposite party in good faith on the basis of bona fide wrong legal advice prosecuted the earlier proceedings, such finding was sufficient for granting relief under section 5 of the Limitation Act even though other conditions mentioned in section 14 were not fulfilled. 15. Regarding the period after rejection of the special leave application till January 28, 2000, the court of appeal below was satisfied with the explanation given by the opposite party about the illness of the concerned director who was looking after the litigation on behalf of the opposite party by believing the affidavit and the certificate of the doctor and also about the correct advice given by the lawyer practising in the Apex Court. Therefore, sufficient cause was shown for the delay covering the entire period. Such finding is also essentially a finding of fact based on appreciation of materials on record and thus there is no scope of interference with such finding within the narrow scope of section 115 of the Code. 16. It is not a case where the aforesaid findings of the court below was based on no evidence not is it a case where no reasonable person would arrive at such finding. 17. The law is now equally settled that merely because the court below has supplied a wrong reason in passing the order impugned, that fact alone is not sufficient for setting aside the order in revision if the ultimate conclusion arrived at by the court below is correct. I have already indicated that in the fact of the present case no mala fide can be imputed either to the opposite party or its counsel for not preferring the appeal before approaching the wrong forum. 18. Moreover, the petitioner has already recovered possession-of the property in execution of the order impugned in the appeal. The court below has also passed an order of payment of costs of Rs.
18. Moreover, the petitioner has already recovered possession-of the property in execution of the order impugned in the appeal. The court below has also passed an order of payment of costs of Rs. 200 1/ -as condition for allowing the application. 19. Under such circumstances, I do not find any reason to interfere with the order condoning the delay. The learned court below is directed to hear out the appeal within a fortnight from the date of communication of this order. 20. The revisional application is thus dismissed. No costs. Revisional application dismissed.