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2009 DIGILAW 642 (ORI)

GEETA MISHRA v. STATE OF ORISSA

2009-08-18

SANJU PANDA

body2009
JUDGMENT : S. Panda, J. - This Civil Revision has been filed challenging the order dated 24.4.2001 passed by the learned 1st Addl. Civil Judge (Senior Division), Cuttack in Money Suit No. 107 of 1992 allowing the application u/s 5 of the Limitation Act (hereinafter referred to as "the Act") condoning the delay and consequent thereupon, setting aside the abatement and allowing substitution of Defendant No. 3 with costs. 2. The facts of the case are as follows: The present Petitioners are the widow and two married daughters of the deceased Defendant No. 3. Opposite party Nos. 1 and 2 are the Plaintiffs who filed the suit for recovery of an amount of Rs. 11,94,727.50 being the value of undelivered 192.560 M. Ts of steel materials from the Defendants with pendente lite and future interest. It was alleged by the Plaintiffs that Defendant No. 1 received a bank draft of Rs. 21,61,163.00 for supply of TOR steel and M.S. angles for construction of barrage on Mahanadi river at Zobra. His agent, Defendant No. 2 received delivery of 297.120 M. Ts of TOR bar and M.S. angles on different dates but did not deliver the full quantity of iron materials in the Plaintiffs' godown in the year 1988. At that time Defendant No. 3 was the Executive Engineer of Mahanadi Barrage Division and he handed over the challan to Defendant No. 2 without entering into a contract with Defendant No. 2 and illegally attested the signature on the delivery of order of a person whose identity was not available in the official records. Therefore, in order to have illegal gain by causing heavy loss to the State Government, he misappropriated the price by selling it in the open market. Due to such action of Defendant No. 3, the Plaintiffs lost a sum of Rs. 11,94,727.50. Hence, they filed the suit for recovery of the said amount along with pendente lite and future interest. Defendant No. 3 appeared in the suit and filed his written statement on 8.4.1994. He retired from the Government service on 31.12.1995. 3. Due to such action of Defendant No. 3, the Plaintiffs lost a sum of Rs. 11,94,727.50. Hence, they filed the suit for recovery of the said amount along with pendente lite and future interest. Defendant No. 3 appeared in the suit and filed his written statement on 8.4.1994. He retired from the Government service on 31.12.1995. 3. While the matter stood thus, on 3.4.2000 the Plaintiffs filed applications under Order 22, Rules 4 and 9 of the Code of CPC and Section 5 of the Act for substitution of L Rs of Defendant No. 3, setting aside abatement and condonation of delay in filing the applications for substitution and setting aside abatement respectively disclosing therein that they came to know regarding the death of Defendant No. 3 in the month of November, 1998. Thereafter, they took steps to collect the actual date of death of Defendant No. 3 and the detail information regarding his L Rs and after correspondences with the deceased Defendant's department and the Accountant General, Orissa, in the month of January, 2000 the Plaintiffs received information regarding the date of death of Defendant No. 3 and the addresses of his L Rs. After collecting those information, in the month of February, 2000 they filed the application. But in fact they filed the application on 3.4.2000. 4. From the above, it is clear that the Plaintiffs had knowledge about the death of Defendant No. 3 and also obtained the detailed information about the L Rs in the month of January, 2000. However, they did not take any step to file applications for condonation of delay, setting aside abatement and substitution. As per Article 120 of the Act, an application for substitution of L Rs has to be made within 90 days from the date of the death. Failure to bring on record the legal representatives of the deceased within 90 days from the date of the death, results in the abatement of the suit. However, under Article 121 of the Act, an application for setting aside abatement can be made within 60 days from the date of abatement. However, the party has to explain the delay by making an application under Article 121 of the Act. Therefore, Articles 120 and 121 should be read and applied harmoniously and the total period is 150 days. However, under Article 121 of the Act, an application for setting aside abatement can be made within 60 days from the date of abatement. However, the party has to explain the delay by making an application under Article 121 of the Act. Therefore, Articles 120 and 121 should be read and applied harmoniously and the total period is 150 days. Beyond the period of 150 days, as per Section 5 of the Act the party has to show sufficient cause to condone such delay. In the present case, though the Plaintiffs obtained the detailed information in the month of January, 2000 to substitute the deceased Defendant No. 3, neither they took any step immediately nor did they file the applications for substitution and setting aside abatement and the application for condonation of delay explaining the delay in filing the said applications from January, 2000 till 3rd of April, 2000. 5. The apex Court in a decision reported in Mahabir Singh Vs. Subhash and Others, while considering the application under Order 9, Rule 13 of the Code of CPC for setting aside the ex parte decree held that the period of limitation is reckoned from the date of knowledge about the ex parte decree (emphasis supplied). As the application under Order 9, Rule 13 of the Code of CPC was filed one and a half years after the first Respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation. 6. In terms of Section 3 of the Limitation Act, 1963, no court shall have jurisdiction to entertain any suit or application if the same has been filed after expiry of the period of limitation. The High Court could not have ignored the said jurisdictional fact. 7. In view of the aforesaid principle, in the present case since the Plaintiffs have not filed an application within the reasonable time from the date of the knowledge or explained the cause to condone the delay from January, 2000 to 3rd of April, 2000, the trial court should not have allowed the Plaintiffs application for condonation of delay as Section 5 of the Act provides that an application for condonation of delay has to be filed explaining each day of delay. Therefore, this Court sets aside the order dated 24.4.2001 passed by the learned 1st Addl. Therefore, this Court sets aside the order dated 24.4.2001 passed by the learned 1st Addl. Civil Judge (Senior Division), Cuttack in Money Suit No. 107 of 1992. Accordingly the Civil Revision is allowed. No costs. Final Result : Allowed