Andhra HC (Pre-Telangana)
T. Krishnaswamy vs Maniyamma on 18 September, 2000
Equivalent citations: 2000(6)ALD290, 2000(6)ALT211, AIR 2001 ANDHRA PRADESH 37, (2000) 6 ANDH LT 211 (2000) 6 ANDHLD 290, (2000) 6 ANDHLD 290
Author: Vaman Rao
Bench: Vaman Rao
ORDER
1. This revision petition is directed against the order dated 31-8-1999 passed by the X Junior Civil Judge, City Civil Court, Hyderabad in IA No.612 of 1999 in IA No. 1931 of 1996 in OS No.1667 of 1989 under which the said IA No.612 of 1999 purported to have been filed under Section 5 of the Limitation Act for condoning the delay in representing the application for restoring IA No.1931 of 1996, which was dismissed for default, has been dismissed.
2. Neither the memorandum of civil revision petition nor the order passed by the learned Junior Civil Judge contains the necessary details as to for what purpose the IA No.1931 of 1996 was filed. However, on behalf of the petitioner, an affidavit has been filed in this Court giving certain particulars leading to this civil revision petition.
3. It appears the petitioner herein has filed OS No.1667 of 1989 before the X Asst. Judge, City Civil Court, Hyderabad for declaration of title and perpetual injunction in respect of certain property. A petition in IA No.119 of 1946 sic has been filed tinder Order 6, Rule 17 of CPC seeking to add the relief of possession and cancellation of the sale deed dated 23-11-1991. The plaint was returned for want of pecuniary jurisdiction by the X Assistant Judge on 4-11-1994 and on 8-11-1994, the plaint was re-submitted in the Additional Judge's Court in OS Sr.No.12088 of 1994. On 2-12-1995, the plaint was returned by the Additional Judge's Court on the ground of lack of jurisdiction for presentation before the proper Court. Again, the plaint was re-submitted in the Court of Assistant Judge in OS SRNo.16878 of 1995 and the same was returned with office objection. On 13-3-1996, it was represented with IA SR No. 1264 of 1996 to extend time in representing the suit by condoning the delay of 93 days. Though it is not mentioned even in the additional affidavit filed by the petitioner, but it has to be presumed that this IA was returned with some objections. It is not clear from the affidavit filed by the petitioner as to for what purpose the said IA was filed. It appears on 16-12-1996 another IA 1931 of 1996 was filed under Section 148 of CPC seeking extension of time by condoning the delay in representing IA SR No. 1264 of 1996. On 23-4-1999, this IA 1931 of 1996 was dismissed for default. The present IA No.612 of 1999 has been filed under Section 5 of the Limitation Act in July, 1999 to condone the delay of 49 days in filing the petition under Order 9 Rule 9 of CPC to restore IA No.1931 of 1996 with the affidavit of the Counsel for the petitioner.
4. In support of this application under Section 5 of the Limitation Act, the petitioner's advocate filed an affidavit stating that IA No.1931 of 1996 was filed under Section 148 of CPC for extension of time by condoning the delay in representing IA No.1264 of 1996. It is stated that the Court ordered 'Notice' in the said IA. The Counsel appearing for the respondent refused to take notice. Then notice was sent to the party through the Court. The respondent in the said IA entered appearance through a Counsel who had been seeking time for filing counter. It is stated that petitioner's advocate was not aware of the counter as having been filed and he was under bona fide impression that the counter was yet to be filed. The matter was posted to 23-4-1999 for filing counter. He was under the impression that the matter was still coming up for counter. He thought of noting down the date of adjournment later and therefore he left for the High Court in the forenoon and could not return back to the Court on that date. On subsequent dates, the case escaped in his diary. During Summer Vacation, he was out of station and his staff re-arranged the bundles and kept the bundle without date. It came to his notice on review of all cases after the office was 'reset' in the week prior to the presentation of the petition. When he verified with the Court record, he found that the case was dismissed for default on 23-4-1996. It is stated that his absence on the dale of hearing was neither willful nor wanton but only due to the reasons mentioned above.
5. This petition was opposed and a counter-affidavit has been filed. It is stated that the petitioner was not diligent in prosecuting the case. Another objection taken was that the petitioner himself has not filed the affidavit and as such he is not entitled for any relief. It is stated that the affidavit filed by the advocate for the petitioner is silent about the absence of the petitioner when the case was called and when there was no reason for his absence no relief can be granted to the petitioner. It is stated that the suit itself has been filed to harass the respondent and the petitioner is really not interested in the proceedings.
6. It is specially stated in respect of IA No.1931 of 1996 that the respondent filed counter on 7-10-1998, on the said date neither the Counsel nor the petitioner was present and as such a copy of the counter could not be served on the petitioner's Counsel and it was placed in the Court bundle. Even after that the matter underwent several adjournments to several dates on which neither the petitioner nor his Counsel was present. Thus, the dismissal of the petition on 23-4-1999 was justified. It is denied that the petitioner Counsel was under the impression that the matter was coming up for counter. The question of the case being posted to 23-4-1999 for counter does not arise when the counter was already filed on 7-10-1989. It is thus stated that the petitioner has been negligent all along and that he failed to explain each day's delay.
7. The learned Junior Judge dismissed the application on the ground that the requirements of Section 5 of the Limitation Act arc not complied with. After extracting Section 5 of the Limitation Act, the learned Judge observed that 'the said application is not filed as per Section 5 of the Limitation Act' and held that the petition was not maintainable as per law and accordingly dismissed the petition. Though it is not expressly stated, but the ground seems to be that Section 5 of the Limitation Act mentions that any appeal or application may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period, and that in this case the appellant/applicant did not make the application.
8. The reasoning appears to be Section 5 of the Limitation Act mentions the 'appellant or the applicant' and inasmuch as in this case 'applicant' i.e., the petitioner has not filed his affidavit and at any rate his advocate has filed his affidavit hence the petition is not maintainable. It is a strange reasoning and difficult to appreciate. The learned Junior Judge seems to be obvious of the provisions in Order III of CPC. Order III, Rule 1 of CPC contemplates that any appearance, application or act in or to any Court required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for time being in force, be made or done by the party in person, or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Thus, an advocate appearing for a party can make an appearance, application or do an act in any Court on behalf of the party whom he represents. Thus, there is no prohibition in an advocate filing an affidavit in respect of a matter in which he was appointed as an advocate on any question in relation to which he is in a position to depose. Thus the solitary ground on which the petition under Section 5 of the Limitation Act has been dismissed cannot be sustained.
9. In fact, as held in the case of Sutharsana v. Samarapuri, AIR 1928 Mad. 690, a Division Bench of Madras High Court observed that though vakils and other practitioners of the Court, when they are called upon to speak to facts known to them by way of evidence in any litigation, are not different from other witnesses and would have to depose like all other witnesses, stilt a well recognised practice has grown up in all Courts of accepting the statements from the Bar of practitioners with regard to matters in connection with the very litigation in which they are engaged as practitioners. It is further observed that for that purpose, they were really regarded as officers of Court owing of duty to the Court and it was expected that such statements would be truly made with a full realisation of the sense of responsibility and that it was not necessary to insist upon their making an affidavit.
10. Thus, a statement made by an advocate across the bar in respect of the matters which are in his personal knowledge on the question before the Court can be accepted. There is no reason why an affidavit sworn to by him could not be accepted.
11. However, during the course of arguments, a doubt arose whether there is any delay at all to be condoned under Section 5 of the Limitation Act.
12. The present application under Section 5 of the Limitation Act for condoning the delay has been filed on the assumption that Limitation for filing IA No. 1931 of 1996 for resorting the application in IA No.1264 of 1996 was 30 days.
13. I invited both the learned Counsel who proceeded on this assumption as to the basis therefor. They are unable to pin point any provision of law under which period of limitation has been fixed as 30 days for presenting an application for restoring a petition under Section 148 of CPC, which has been dismissed for default.
14. It was however contended by the learned Counsel for the petitioner that though provisions of Order IX, Rule 9 of CPC in terms do not apply for a petition to restore an application filed under Section 148 of CPC, but these provisions can be invoked by virtue of Section 141 of CPC. Thus, it is contended that inasmuch as Article 122 of the Limitation Act prescribes the period of 30 days for an application to restore the suit or appeal or revision or review dismissed for default, the same period of 30 days would apply to an application for restoring an application under Section 148 of the CPC dismissed in default.
15. To appreciate this contention, it is apposite to extract Section 141 of CPC. 'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction'.
16. The question is whether an application filed under Section 148 of the CPC for extracting time for representation of a matter, namely, suit or any other application returned by the Court with some objections, enjoining certain period for the purpose of representation can be considered as a proceeding within the meaning of Section 141 of CPC. Explanation 2 of Section 141 of CPC introduced by 1976 Amendment Act specifically includes proceedings under Order 9 of CPC within the purview of the said section. Thus, there will be no difficulty in applying Section 141 of CPC to proceedings arising under Order IX CPC including applications to restore an application filed for restoring the suit dismissed for default in view of specific inclusion of said proceedings within the ambit of Section 141 of CPC. It has been held in a catena of decisions including the decision of the Supreme Court in the case of Sisir Kumar v. Slate of W.B., , that Section 141 of CPC docs not apply to applications for execution of decrees. It has been held that the provisions of Section 11 relating to res judicata in regard to suits do not apply for execution of decrees though the principle underlying the provision may be applicable.
17. Similarly, it has been held that the provisions of Order 2 of CPC do not apply to the applications for execution. Similarly, it has been held that the provisions of Order 9, Rule 9 of CPC cannot be invoked for restoring an execution petition dismissed for default. Similarly, it has been held that the provisions of Order XVII, Rules 2 and 3 of CPC do not apply to the applications for execution and as such an order dismissing an application for default is not a bar to file a fresh application for execution, (commentary on the Code of Civil Procedure, abridged edition, twelfth edition by P.M. Bakshi, at pages 363 and 364).
18. It has been held that the 'proceedings' referred to in Section 141 of CPC refers to original matters in the nature of suits, such as proceedings in probate, guardianship and so forth and do not include execution proceedings. In some cases like Ramgopal v. Shanti Lal, (1941) All. 807 it has been held that the proceedings which do not originate in themselves but spring out from a suit or from some other proceedings or which arose in connection therewith, do not fall within the ambit of Section 141 of CPC.
19. It may however be noted that applications under certain provisions of CPC itself have been held to be proceedings within the meaning of Section 141 of CPC. For instance, applications under Section 92 of CPC have been held to be proceedings as contemplated under Section 141 of CPC by Madras High Court in B.S. Adityan v, R Kannan Adityan, (1983) 2 MLJ 32. The proceedings in a suit taken under the provisions of the CPC which are independent and original in character have been held to be covered by the 'proceedings' referred to in Section 141 of CPC. For instance, the proceedings under Section 24 of the CPC for transfer of suit have been held to be so by the Madras High Court in the case of Subba Reddy v. Narayanaswamy Reddy, (1949) AM 283. In the case of Prem Singh v. Sal Ram, Das, , petition under Order 33, Rule 1 of CPC has been similarly held to come within the purview of Section 141 of CPC. Similarly, an application under Order 34, Rule 5(3) of CPC has been held to be such 'proceeding' by the Madras High Court in the case of Sri Ramulu v. Sri Ramulu, AIR 1933 Mad. 55. An application under Order 34, Rule 6 of CPC has been held to be covered by Section 141 of CPC by the Allahabad High Court in Babulal v. Raghunandhan, AIR 1930 All. 841.
20. The crucial question is whether an application under Section 148 of CPC for extension of lime can be treated as an independent proceeding which originates in itself or is it a proceeding which is merely ancillary to another proceeding and which springs out from that proceeding.
21. For ascertaining this, it would be necessary to examine the nature of the proceeding under Section 148 of CPC, which is extracted below :
"148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired".
22. It is manifest from this provision that (i) no proceeding originates with an application under this section; (ii) it springs out from another proceedings which is already pending before the Court; (iii) the power of the Court to extend time for doing any act directed or allowed by the Court is not contingent on a written application being moved by the party concerned. The Court may on its own enlarge the time considering the circumstance; (iv) the provision is intended to secure ends of justice and (v) it may be seen that the power of the Court to enlarge time for doing certain things "from time to time' indicates that passing an order on an application under Section 148 of the CPC in respect of the matter does not exhaust the powers of the Court and such power can be exercised repeatedly in respect of the same matter.
23. Considering these features and considering the nature of discretion vested in the Court under Section 148 of the CPC, an application under this provision cannot be said to meet the requirement of 'proceeding' within the meaning of Section 141 of CPC.
24. If Section 141 of CPC is to be held not applicable, then the question of application of provisions under Order 9 of CPC for restoring the application under Section 148 of CPC, which has been dismissed for default would therefore not arise. Such an application cannot be made. This, however, does not mean that when an application filed under Section 148 of CPC for enlarging time granted by the Court is dismissed, the petitioner is left, without remedy. On the other hand, it is obvious that dismissal of such an application in respect of which a petition for restoration cannot be filed, does not bar a fresh application for the relief of enlargement of time. It is obvious that such an application could seek extension of time not only up to the date on which the first application was dismissed but also in respect of subsequent period also. It may be mentioned that under the same principles, the dismissal of an execution petition in default does not bar a fresh petition if it is filed within the prescribed period of the limitation.
25. Even assuming that an application under Order 9, Rule 7 of CPC would lie for restoring an application under Section 148 of CPC, there is no basis for holding that the limitation for such an application is 30 days. Article 122 of the Limitation Act provides 30 days as a period of limitation in respect of applications to restore the suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. By no stretch of imagination, an application under Section 148 of CPC for enlargement of time can be construed as a suit or appeal or application for review or revision.
26. The consequence of application of Section 141 of CPC to any application or proceeding would be that the procedure prescribed in the Code in regard to suits shall be followed as far as it can be made applicable to such applications or proceedings. The implication is that Section 141 of CPC would require the Court to follow the procedure prescribed in the Code in regard to enquiry into and dismissal of proceedings to which the said section applies. Thus, the thrust is on the following of the 'procedure' prescribed by the Code in the suit. Period of limitation prescribed under a statute is not a matter of procedure. Even if Section 141 is held to be applicable to certain application that in itself would not alter the provisions in the Limitation Act nor would it call for or justify interpreting the provisions in the Limitation Act differently and contrary to the language used in the relevant provision. Inasmuch as Article 122 under Third Division - Part I of the Schedule of the Limitation Act, explicitly and unambiguously refers to applications to restore a suit or appeal of appearance, there is absolutely no reason for assuming that an application for restoration of an application under Section 148 of the CPC would fit in with Article 122 in the schedule under the Limitation Act which specifically restricts it to applications to restore suit, appeal or application for review or revision. If this be so, the only article that would be applicable would be the residuary Article 137 under Schedule of the Limitation Act. The description of applications to which this article applies has been given as 'any-other application for which no period of limitation is prescribed elsewhere in this division'. Inasmuch as no period of limitation has been prescribed separately for applications for restoring petitions under Section 148 of the CPC, only Article 137 of the CPC could be said to apply for which period of limitation provided for is 3 years. This view is supported by a Special Bench judgment of the Calcutta High Court in the case of Nurnahar Bewa v. Rabindra Nath, . Their Lordships have held that in respect of an application for restoring a petition which itself was filed for restoring the suit dismissed for default, limitation for restoration is governed by Article 137 of the Limitation. Their Lordships have suggested that an amendment should be made so that such applications would be governed by Article 122 of the Limitation Act.
27. A Division Bench of the Madhya Pradesh High Court in the case of Sayeeda Begum v. Ashraf Hussain, , has held that Order 22 of CPC does not in terms apply to a miscellaneous proceedings initiated under Order 9 of CPC for restoration of the suit dismissed for default. It has been held that Order 22 of CPC contains penal provisions which have to be construed strictly.
28. In regard to the limitation, it has been held that Article 120 of the Limitation Act governs the application for bringing on record legal representative of the deceased parties to suits or appeals in any suit or appeal and this article cannot be extended in its operation by analogy or otherwise to an application for substituting the legal representatives when an applicant or non-applicant dies in a proceeding. It has been held that it cannot be read into the article 'applicant' for the plaintiff or 'non-applicant' for the defendant. It has been observed that Section 141 of CPC may only permit procedure in the suit to be followed for applications. It was thus held that as there was no specific provision residuary article would apply. In this view of the matter, there was no need to file an application under Section 5 of the Limitation Act.
29. But in my view as has been held above Section 141 of CPC would not apply to an application for restoring a petition under Section 148 of CPC, which has been dismissed in default. It is therefore obvious that the provisions in Order 9 of CPC for restoration of such an application would not apply.
30. In the result, the order of the learned Judge dismissing the said application purported to have been filed under Section 5 of the Limitation Act is set aside. But, there is no need to remit the matter back to the Asst. Judge.
31. The petitioner is permitted to file a comprehensive application under Section 148 CPC for extending the time showing the reasons for the inability of the petitioner for re-submission of the application within the period allowed by the Court within two weeks. On filing of such application, the learned Judge shall dispose of the same on merits. This civil revision petition is disposed of with these observations and directions.