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2010 DIGILAW 2430 (PAT)

Bachhi Devi v. Shashi Bhushan Singh

2010-11-03

RAMESH KUMAR DATTA

body2010
JUDGEMENT 1. Heard learned counsel for the petitioners and learned counsel for the opposite party Nos. 1 and 3(ii) to 3(iv). 2. The application has been filed for restoration of Civil Revision No. 872 of 2005 which stood dismissed for non-compliance of the peremptory order dated 2.7.2007 of this Court. By the aforesaid order this Court had granted two weeks time to learned counsel for the petitioners to comply with the first part of the order dated 30.3.2007 of the Lawazima Board, i.e., for filing an affidavit of jointness of opposite party Nos.3(i) & 3(H) with opposite party No.3(iii) within a period of four weeks from that date. Since the said order was not complied with within the peremptory time granted, the Civil Revision Application stood rejected in terms of the peremptory order. Accordingly, the present application for restoration has been filed. 3. Learned counsel for the appearing opposite parties submits that the restoration application has been filed beyond the period of limitation as provided by Article 122 of the Limitation Act and thus the same should be dismissed as barred by limitation. In support of the same he relies upon a decision of a Division Bench of this Court in the case of Radhanath Pathak and another Vs. Bihar State Board of Religious Trusts, Patna :A!R 1968 Patna 110. 4. Learned counsel for the petitioners, on the other hand, submits that an order of the present nature granting peremptory time for filing of jointness affidavit cannot be considered as an order passed in any provision of the Code of Civil Procedure and thus it would not be governed by Article 122 of the Limitation Act as held by a Division Bench of this Court in the case of Mrs. Minnie Lal Vs. Mahadeo Lall Marwari and others :AIR 1949 Patna 112, which, in turn, has held the same relying upon a decision of a Full Bench of this Court in the case of Ram Khelawan Singh Vs. Moni Lal Sahu:AIR 1939 Patna 678. 5. It is urged by learned counsel that the said decisions clearly laid down that orders of the present nature are not governed by Article 168 of the Limitation Act, 1908 which was in similar terms as Article 122 of the present Limitation Act. In paragraph-2 of Mrs.Minnie Lal case it has been observed as follows : "2. 5. It is urged by learned counsel that the said decisions clearly laid down that orders of the present nature are not governed by Article 168 of the Limitation Act, 1908 which was in similar terms as Article 122 of the present Limitation Act. In paragraph-2 of Mrs.Minnie Lal case it has been observed as follows : "2. Mr.U.N.Sinha, on behalf of the opposite party, has urged that the petition is barred by limitation, having been filed beyond the period prescribed in Art. 168 in Sch.1, Limitation Act, 1908 . He points out that this article refers in general terms to an application "for the readmission of an appeal dismissed for want of prosecution," and relies for his contention on a decision of a Full Bench of the Rangoon High Court reported in S.A.Ganny Vs. I.M.Russell, 8 Rang. 380: (A.I.R.(17) 1930 Rang. 228 F.B.). That decision is distinguishable on the facts because, as was pointed out by Carr J. at pp.232 and 233 of the report, the application for re-admission in that case was filed under 0.52, Civil P.C., as then in force in Burma. Far from supporting Mr.U.N.Sinha, that case supports the view that Art. 168 has no application to the case before us-I refer to the passage in the judgment of Page C.J.at p. 231, where he cites Srimati Lakhimoni Dassi Vs. Dwijendra Nath, 23 C.W.N. 473: (A.I.R. (6) 1919 Cal. 345), Wadia Gandhy & Co. Vs. Purshottum, 32 Bom. 1 (9 Bom. L.R.508) and Raja Narendra Lal Khan Vs. Taru Bala Dassi, 25 C.W.N. 800 : (A.I.R. (8) 1921 Cal. 67) as authorities for the proposition that "Art. 168 would apply only to applications to readmit appeals dismissed for want, of prosecution as provided or contemplated by the Code of Civil Procedure." The same view was expressed by Carr J. at p. 391: "I think that it must be held, on authority, that the articles in the Third Division of Sch. 1 to the Limitation Act apply only to applications under the Code of Civil Procedure, and applications ejusdem generis." In the present case, I do not think it necessary to examine the cases cited above and the other reported cases, going back to Baimanekbai Vs. Manekhi Kavasji, 7 Bom. 213, supporting the view that division 3 of Sch. 1 to the Limitation Act apply only to applications under the Code of Civil Procedure, and applications ejusdem generis." In the present case, I do not think it necessary to examine the cases cited above and the other reported cases, going back to Baimanekbai Vs. Manekhi Kavasji, 7 Bom. 213, supporting the view that division 3 of Sch. 1, Limitation Act, 1908 , in which division Art. 168 occurs, refers to applications under or contemplated by the Civil Procedure Code. The answer to Mr.U.N.Sinhas contention is, in my opinion, that the Court is here called on to exercise its inherent power, and that power is not affected by the law of limitation. This is the view expressed by Shah J. in a case which is exactly in point Sonubai Baburao Vs. Shivaji Rao, 45 Bom. 648: (A.I.R.(8) 1921 Bom. 20). As put by Mahmud J. "the law of limitation relates to the action of parties, but not to the action of the Court," and "the mere fact that one of the parties had made an application asking the Court to exercise that power will not......render the action of the Court subject to the rule of limitation." Raghunath Das Vs. Raj Kumar, 7 ALL 276: (1885 A.W.N. 256) and Dhan Singh Vs. Basant Singh, 8 ALL 519: (1886 A.W.N.182). In Jagdip Narain Singh Vs. F.H.Holloway, 2 P.L.J.206: (A.I.R.(5) 1918 Pat. 52) Chapman J. took the view that Art. 168 applies to an application under S. 151, Civil P.C. This was merely by way of an obiter dictum, for the case before the Bench was disposed of, Roe J. concurring, on the ground that the Court below acted rightly in disallowing an application made after the period of limitation which would apply to suits or applications asking for a similar remedy. Their Lordships, therefore, merely laid down a principle according to which the inherent power should be exercised. A similar view as to this principle was expressed by Shah J. at p.653 in Sonubai Baburao v. Shivajirao, 45 Bom. 648 : (A.I.R.(8) 1921 Bom. 20) and by Chaudhuri J. at p. 253 in Lakhimoni Dassi v. Dwijendra Nath, 46 Cal. 249 : (A.I.R. (6) 1919 Cal. 345). Mr.U.N.Sinha has also cited Ajodhya Mahton v. Mt.Phul Kuar, 1 Pat. 277: (A.I.R.(9) 1922 Pat. 648 : (A.I.R.(8) 1921 Bom. 20) and by Chaudhuri J. at p. 253 in Lakhimoni Dassi v. Dwijendra Nath, 46 Cal. 249 : (A.I.R. (6) 1919 Cal. 345). Mr.U.N.Sinha has also cited Ajodhya Mahton v. Mt.Phul Kuar, 1 Pat. 277: (A.I.R.(9) 1922 Pat. 479) That decision is merely an authority that, where a definite period of limitation is provided by law within which action must be taken, a Court is not entitled to extend such period by purporting to act under S. 151, Civil P.C. This follows from the fact that provision made in the law for a particular relief necessarily excludes any inherent power in the Court to grant that relief. Therefore, if the party has put it out of its power to claim that relief by allowing the period limited for the application to elapse, it is not open to the Court to grant that remedy in exercise of inherent power. Here, however, the relief sought is not covered by any provision of law and the inherent power of the Court to grant the remedy is preserved." 6. Learned counsel also relies upon a similar decision of a Division Bench of the Calcutta High Court in the case of Biswanath Banerjee and others Vs. Amar Nath Mukherjee and others : AIR 1962 Calcutta 110 in which relying upon a decision of the Division Bench of this Court in the case of Mrs. Minnie Lal (supra) and the Full Bench decision in Ram Khelawan Singh case, the similar proposition was laid down. 7. It is contended by learned counsel that the subsequent Division Bench having not considered the earlier Full Bench and Division Bench decisions would be a decision per incurium and cannot override the law laid down by this Court by the Full Bench and the earlier Division Bench. 8. Article 122 of the Limitation Act, 1963 replaces the combined Articles 160, 163, 168 and 172 of the Limitation Act, 1908 . The said Articles under the earlier Act had provided different periods of limitation for setting aside the orders of dismissal for default or non-prosecution in different matters whereas the present Article provides for a uniform period of thirty days in all matters. It has been laid down by the Division Bench in Mrs. The said Articles under the earlier Act had provided different periods of limitation for setting aside the orders of dismissal for default or non-prosecution in different matters whereas the present Article provides for a uniform period of thirty days in all matters. It has been laid down by the Division Bench in Mrs. Minnie Lais case (supra) that Article 168 and other similar Articles in the Third Division of Sch.1 to the Limitation Act are with respect to applications under or contemplated by the Civil Procedure Code whereas in the case of an order of present nature, where dismissal is on account of failure to comply with the peremptory order, the Court is called upon to exercise its inherent power and that power is not affected by the law of Limitation. It was thus held that the relief sought is not covered by any provision of law and the inherent power of the Court to grant the remedy is preserved. 9. In my view, the aforesaid proposition of law laid down by the Division Bench in Mrs. Minnie Lal case (supra) applies with full force to the present matter. The subsequent Division Bench in Radhanath Pathak case (supra) can in no case override the law laid down by the earlier Division Bench and the Full Bench of this Court without even referring to those decisions. 10. For the aforesaid reasons, this Court is of the view that the present application is not barred by limitation. 11. In the present matter the affidavit of jointness had been filed on 20.7.2007, i.e., beyond the two weeks time allowed by this Court by its peremptory order dated 2.7.2007 and for the said reason it was rejected. Subsequently the petitioners could learn about the dismissal of the case only on inspection on 23.1.2009. They also learnt that due to inadvertence the affidavit of jointness had also not been properly filed in terms of order dated 30.3.2007 of the Lawazima Board and filed a fresh affidavit of jointness in terms of the said order. 12. Thus, on a consideration of the facts and circumstances, this Court considers it a fit case for restoring Civil Revision No. 872 of 2005. Accordingly, it is directed to be restored to its original file. The application is, thus, allowed.