Supreme Court - Daily Orders
Sri Arindam Mukhopadhyay @ Mukherjee vs Sri Chunilal Ganguly on 26 September, 2023
Bench: Aniruddha Bose, Bela M. Trivedi
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6179 OF 2023
(Arising out of SLP(C) No. 17052/2017)
SRI ARINDAM MUKHOPADHYAY
@ MUKHERJEE Appellant(s)
VERSUS
SRI CHUNILAL GANGULY & ORS. Respondent(s)
ORDER
Leave granted.
Assailed in this appeal is an order passed by a learned Single Judge of the High Court at Calcutta in its civil revisional jurisdiction rejecting prayer for amendment of plaint in a partition suit. The plaintiff was, however, permitted to file a fresh suit upon withdrawing the suit which was pending. The appellant before us is one of the defendants in the suit out of which the present proceeding arises. The operative part of the order impugned in this appeal records:-
“ In view of the altered case sought to be run by the plaintiff by way of the proposed amendment, the plaintiff is permitted to file a fresh suit upon withdrawing T.S. 323 Signature Not Verified of 2013 with leave to file a fresh suit. In the event the Digitally signed by SNEHA DAS Date: 2023.10.04 fresh suit is filed within four weeks of T.S. 323 of 2013 16:24:07 IST Reason: being withdrawn by citing this order and obtaining leave to file a fresh suit, the ground of limitation will not be urged by the opposite parties herein. It is recorded that the opposite parties, who are all 2 represented, have agreed not to urge the ground of limitation in the event the fresh suit is filed within the time indicated. Apart from the ground of limitation, all other points are left open to be urged by the opposite parties.” Mr. Ganguli, learned senior counsel appearing for the appellant has argued that the counsel representing the opposite parties in the High Court did not have the instruction to give concession as recorded in the order under appeal. Secondly, he has relied on Section 3 of the Limitation Act, 1963 to contend that it is not within the Court’s jurisdiction to extend the time of limitation even on consent of the parties.
In the petition for special leave to appeal, the following points of law have been framed by the appellant :-
“ii) Whether or not the Hon’ble High Court at Calcutta committed substantial error of law in disposing of C.O. No. 1688 of 2016 arising out of an application under Article 227 of the Constitution of India against the Order of the Learned Trial Court rejecting an application for amendment of plaint pertaining to a suit filed in 2013 by the plaintiff/Respondent therein and in observing that in the event the fresh suit is filed within 4 weeks of Title Suit No. 323 of 2013 being withdrawn by citing the impugned order and obtaining leave to file a fresh suit, the ground of limitation will not be urged by the opposite parties therein/the petitioner herein without applying its judicial mind that there cannot be any estoppels against the statute i.e. Limitation Act 5, 1963?
iii) Whether or not the findings of the Hon’ble High Court at Calcutta in disposing of C.O. No. 1688 of 2016 is totally a perverse one in as much as the Hon’ble High Court at Calcutta has wrongly recorded that the opposite parties therein who are all represented, have agreed not to urge 3 the ground of limitation in the event the fresh suit filed within the time indicated in the impugned order when neither the opposite parties therein did make any submission at the time of hearing regarding the ground of limitation far less to speak off that they have agreed not to urge the ground of limitation in the event the fresh suit is filed which is not only contrary to law but also against the consent of the opposite parties in the Revisional Court below?” We have gone through the order of the High Court and it appears to us that the learned Judge had passed the aforesaid order on the basis of concession or agreement of the learned counsel for the opposite parties in the said proceeding. The appellant’s case is that the learned counsel representing the opposite parties before the High Court did not have any instruction to give concession as recorded in the order impugned and if indeed the opposite parties did not agree to forego the point of limitation in the subsequent suit the plaintiff proposed to file, the same order might not have had been passed.
But in exercise of our appellate jurisdiction, we are not inclined to embark on an enquiry as to what transpired in course of hearing before the High Court. The appellant ought to have raised that point before the High Court only. This course of action in similar situation has been prescribed by 4 this Court in the case of State of Maharashtra -vs- Ramdas Shrinivas Nayak & Anr. [(1982) 2 SCC 463]. This being the legal position, we set aside the impugned order and remit the revisional petition to the High Court for decision afresh. We also accept the submission of Mr. Ganguli that where legislature has laid down the term of limitation, it is not within the jurisdiction of the Court to extend it in absence of specific power conferred on it. But the issue of limitation is a mixed question of law and fact and as we are remitting the matter to the High Court, we leave that question also for adjudication by the High Court. The present appeal is allowed in the above terms. Pending application(s), if any, shall stand disposed of.
……………………………………………..J. [ANIRUDDHA BOSE] ……………………………………………..J. [BELA M. TRIVEDI] NEW DELHI;
SEPTEMBER 26, 2023.
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ITEM NO.21 COURT NO.6 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No. 17052/2017 (Arising out of impugned final judgment and order dated 06-03-2017 in CO No. 1688/2016 passed by the High Court At Calcutta) SRI ARINDAM MUKHOPADHYAY @ MUKHERJEE Petitioner(s) VERSUS SRI CHUNILAL GANGULY & ORS. Respondent(s) Date : 26-09-2023 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ANIRUDDHA BOSE HON'BLE MS. JUSTICE BELA M. TRIVEDI For Petitioner(s) Mr. A. K. Ganguli, Sr. Adv.
Mr. Chanchal Kumar Ganguli, AOR Mr. Prasad Bagchi, Adv.
Mrs. Nivedita Mukherjee, Adv.
Ms. Tuli Ghosh, Adv.
Ms. Anurag Rana, Adv.
Ms. Kavita Rani, Adv.
For Respondent(s) Mr. Subhasish Bhowmick, AOR Ms. Manisha Pandey, Adv.
Mr. Rahul Kushwaha, Adv.
Mr. Raja Chatterjee, Adv.
Mr. Adeel Ahmed, AOR Mr. Piyush Sachdev, Adv.
Ms. Anupama, Adv.
Ms. Taqdees Fatima, Adv.
Ms. Sana Parveen, Adv.
Ms. Nandini Sen Mukherjee, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The present appeal is allowed in terms of the signed order which is placed on the file.6
Pending application(s), if any, shall stand disposed of.
(SNEHA DAS) (VIDYA NEGI) SENIOR PERSONAL ASSISTANT ASSISTANT REGISTRAR