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2009 DIGILAW 289 (CAL)

Nandlal Ghose v. Saktipada Bag

2009-04-06

KALIDAS MUKHERJEE, S.K.MUKHERJEE

body2009
JUDGMENT 1. THIS is a defendant's second appeal and the only question of importance raised is about limitation. How this question of limitation arises would be clear only from the narration of facts. 2. ON or about January 15, 1990 Basudeb Bag, since deceased, instituted Title Suit No. 34 of 1990 in the Court of the learned Civil Judge (Junior Division), Second Court at Barasat, District: North 24-Parganas, inter alia, for ejectment and recovery of mesne profits. During the pendency of the suit, the original plaintiff, Basudeb Bag, died and his heirs and legal representatives were substituted in the suit as substituted plaintiffs by order No. 34 dated September 23, 1997. The defendant entered appearance in the suit and filed his written statement. Ultimately, however, the defendant did not contest the suit. Consequently, by judgment and decree dated July 27, 2000 the learned trial Judge decreed the suit ex parte with costs against the defendant. The learned Judge, inter alia, held that the said plaintiffs reasonably required the suit premises for their own use and occupation and for accommodation of the members of their families. 3. THE defendant filed an application under Order IX, Rule 13 read with Section 151 of the Code of Civil Procedure for recalling of the said ex parte decree. The said proceeding was registered as Miscellaneous case No. 47 of 2000 in the Court of the learned Civil Judge (Junior division), Second Court at Barasat, District: North 24-Parganas. 4. THE learned Judge by order dated May 4, 2005 rejected the said application for recalling of the ex parte decree, on merits. The defendant, being aggrieved by and dissatisfied with the said order dated May 4, 2005 passed in Miscellaneous Case No. 47 of 2000, preferred an appeal in the Court of the learned District Judge, which was registered as Misc. Appeal No. 34 of 2005. The appeal was eventually transferred to the Court of the learned Additional District Judge, Fast Track court No. 4 at Barasat, District: North 24-Parganas. 5. THE learned Judge in the Lower Appellate Court by judgment and order dated May 15, 2006 dismissed the said appeal. 6. THE defendant challenged the order of the Lower Appellate Court before this Court by filing an application under Section 115 of the Code of civil Procedure, which was registered as Civil Order No. 3345 of 2006 in the Civil Revisional Jurisdiction of this Court. 6. THE defendant challenged the order of the Lower Appellate Court before this Court by filing an application under Section 115 of the Code of civil Procedure, which was registered as Civil Order No. 3345 of 2006 in the Civil Revisional Jurisdiction of this Court. S. P. Talukdar, J. by His Lordship's judgment and order dated march 7, 2007 rejected the said revisional application under Section 115 of the Code of Civil Procedure. 7. ONLY on March 23, 2007 this defendant preferred an appeal challenging the said ex parte decree dated July 27, 2000. The appeal was tendered under Title Appeal No. 12 of 2007 in the Court of the learned district Judge at Barasat, District: North 24-Parganas. As the appeal was presented after the expiry of the prescribed period of limitation, this defendant filed an application for condonation of delay invoking the provisions of Sections 5 and 14 of the Limitation Act, 1963. 8. THE defendant in the aforementioned application for condonation of delay, inter alia, contended that the said defendant had sufficient cause for non-filing of the appeal in time inasmuch as the decree was passed ex parte and he was advised to file an application under Order IX, Rule 13 of the Code of Civil Procedure for recalling the ex parte decree. The defendant alleged that he, bona fide, as advised, pursued the remedies under Order IX, Rule 13 of the Code of Civil Procedure. The learned District Judge by judgment and order dated July 30, 2007 rejected the application for condonation of delay in filing the appeal, on contest, holding, inter alia, that the delay was not unintentional, but was a dilatory tactics adopted by the defendant for the purpose of delaying his eviction from the suit property. 9. BEING aggrieved this second appeal is filed by this defendant. 10. THE short question involved in this appeal is whether the appellant is entitled to addition of time taken in prosecuting an application under Order IX, Rule 13 of the Code of Civil Procedure as also the time taken in prosecuting an appeal against the order of rejection of such application and a revisional application against the order dismissing such appeal? Mr. Mr. Swadesh Bhusan Bhunia, learned Senior Advocate, appearing in support of this appeal, submits that the appellant is entitled to add to the period of limitation, prescribed for filing an appeal, the time taken by him in prosecuting unsuccessfully an application under Order ix, Rule 13 of the Code of Civil Procedure, which was dismissed on merits. Mr. Bhunia submits that the defendant is an illiterate person and he proceeded according to the advice of his learned Advocate and, therefore, the learned District Judge ought not to have rejected the application for condonation of delay. Mr. Bhunia cites the decision in the case of Ghasi ram and Ors. v. Chait Ram Saini and Ors. , reported in 1998 (6) SCC 200 and submits that as the defendant was prosecuting the application under Order ix, Rule 13 of the Code of Civil Procedure in good faith, he is entitled to the benefit of Section 14 (2) of the Limitation Act, 1963. Mr. Bhunia submits, relying upon the decision of the Supreme Court of India in the case of n. Balakrishnan v. M. Krishnamurthy, reported in 1998 (7) SCC 123 , that length of delay his no matter, acceptability of the explanation is the only criteria. Mr. Bhunia cites yet another decision in the case of Shakti Tubes limited v. State of Bihar and Ors. , reported in 2009 (1) SCC 786 and submits that the expression "other cause of a like nature", as is appearing in sub-section (2) of Section 14 of the said Act, must relate to the subject-matter of the issue. Mr. Bhunia, lastly, draws our attention to the explanation added to Order IX, Rule 13 of the Code of Civil Procedure by Code of Civil procedure (Amendment) Act, 1976 and submits that had the intention of legislature was to exclude any appeal against an ex parte decree, in the event of rejection of an application under Order IX, Rule 13 of the Code of civil Procedure, the legislature would have specifically incorporated in the statute that no appeal shall lie against an ex parte decree in the event of rejection of the application under Order IX, Rule 13 on merits. 11. WE have narrated hereinabove the contentions of the defendant in his application for condonation of delay. 11. WE have narrated hereinabove the contentions of the defendant in his application for condonation of delay. In substance, he contended that he pursued an application under Order IX, Rule 13 of the Code of civil Procedure on the advice of his learned Advocate and as such he is entitled to extension of time in filing the appeal. 12. THE question whether an unsuccessful applicant under Order ix, Rule 13 of the Code of Civil Procedure can ask the appellate Court to extend the time for filing of the appeal by adding the periods taken up in such unsuccessful proceedings is no longer res Integra. In Ardha Chandra Rai Chowdhury v. Matangini Dassi, reported in ILR 23 Calcutta 325 Chief Justice Sir W. Comer Petheram, speaking for the bench, lays down that when an appellant elects to take proceedings for setting aside an ex parte decree and fails on the merits in an application, which he makes for that purpose, he cannot be allowed to fall back upon the remedy, which was open to him at the time when the original decree was passed and of which he did not choose to avail himself and that recourse to proceeding taken, as aforesaid, was not a sufficient cause within the meaning of Section 5 of the Limitation Act for not presenting the appeal within time. 13. IN Rajendranath Kanrar v. Kamal Krishna Kundu Chaudhuri, reported in ILR 59 Calcutta 1057 this Court notices that the aforementioned proposition has not been dissented from in the High Court at Calcutta in any later case and there is no authority to be found in the decision of any other Court, which is to a contrary effect. There is no decision, in which a practice contrary to what has been laid down in Ardha Chandra Rai chowdhury's case (supra) has been suggested. 14. IN Abodh Bala Ghosh v. Radharani Dasi, reported in ILR 1950 (2) Calcutta 252 another Division Bench followed the aforementioned rulings by the earlier benches and reiterated that it could not be said, as a matter of law, that the appellant was entitled to add to the period of limitation prescribed for the filing of an appeal the time taken by him in a prosecuting an unsuccessful application under Order IX, Rule 13 of the Code of Civil procedure. Ghasi Ram case (supra) cited by Mr. Ghasi Ram case (supra) cited by Mr. Bhunia has no manner of application in this case. The defendant might have proceeded with the application under Order IX, Rule 13 of the Code of Civil Procedure on legal advice, but as he has elected one of the remedies available to him, he is not entitled to extension of time for filing of an appeal against the ex parte decree on the principles contained in Section 14 (2) of the limitation Act, 1963. N. Balakrishnan case (supra) has, also, no manner of application inasmuch as in this case the learned District Judge did not reject the application for condonation of delay on account of the length of the delay. Shakti Tubes Limited (supra) lays down that Section 14 of the limitation Act is wide in its application inasmuch as it is not confined in its applicability only to the cases of defect of jurisdiction, but it is applicable, also, to the cases where the prior proceedings have failed on account of other causes of like nature. 15. IN our view, the expression "other cause of a like nature" in section 14 (2) of the Limitation Act, 1963 is to be constructed ejusdem generis with defect of jurisdiction, which makes it impossible for the Court to entertain the suit or the application. When the earlier proceeding is dismissed on merits, the benefit of Section 14 of the Limitation Act, 1963, cannot be availed. 16. THE Supreme Court of India in Zafar Khan and Ors. v. Board of revenue, U. P. and Ors. , reported in AIR 1985 SC 39 holds that in order to attract the application of Section 14 of the Limitation Act, 1963, the parties seeking its benefit must satisfy the Court: (i) that the party as the plaintiff was prosecuting another civil proceeding with due diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) that the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. When the expression in Section 14 of the limitation Act, 1963, as a whole reads "from defect of jurisdiction or other cause of a like nature is unable to entertain it", the expression "cause of a like nature" will have to be read ejusdem generis with the expression "defect of jurisdiction". So construed the expression "other cause of a like nature" must be so interpreted as to convey something analogous to the preceding words "from defect of jurisdiction. Section 14 of the Limitation Act, 1963, does not apply to appeals, but principle applies. Bona fide prosecution of proceedings in a wrong court is a proper ground as sufficient cause for extending the period for filing an appeal, but electing one of the remedies and failing on merits cannot be a ground under Section 14 of the Limitation Act, 1963. 17. THE Supreme Court of India in State Bank of India and Ors. v. S. N. Goyal, reported in 2008 (8) SCC 92 lays down that where there is a clear enunciation of law and lower Court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. 18. IN Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, reported in air 1982 Supreme Court 1397, the Supreme Court of India considered the effect of insertion of the explanation to Order IX, Rule 13 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976. The Supreme Court of India laid down that the legislative attempt incorporated in the Explanation was to discourage a two pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under order IX, Rule 13 of the Code of Civil Procedure. The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation. Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of doctrine of precedent. The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation. Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of doctrine of precedent. The consistent interpretation by this Court over long period of time should not be departed from without compelling reasons or unless it fs a bad precedent. In the absence of some distinguishing features, earlier decisions, remaining unchallenged, are binding and must be followed. 19. WE do not think that this appeal involves any substantial question of law. We, therefore, summarily dismissed the appeal under Order XLI, rule 11 of the Code of Civil Procedure. 20. IN view of dismissal of the appeal, the application for stay, filed under C. A. N. No. 7796 of 2008, becomes infructuous and the same is, also, dismissed. We make no order as to costs.