Calcutta High Court
Jahar Dey vs Smt. Brojeshwari Saha on 23 March, 2000
Equivalent citations: AIR2000CAL280, AIR 2000 CALCUTTA 280, (2001) 1 CIVILCOURTC 184, (2001) 3 RECCIVR 96, (2001) 2 ICC 130
JUDGMENT Gorachand De, J.
1. This revisional application is directed against the Order dated 9-9-1999 passed by Shri S.K. Prasad, Civil Judge (Senior Division), ninth Court, Alipore in Misc. Appeal No. 148 of 1997. By the said order the learned Judge dismissed the Misc. Appeal and confirmed the Order No. 55 dated 17-7-1993 passed in Title Suit No. 394 of 1985 of the Court of Second Munsif at Alipore .
2. The plaintiff opposite party instituted a suit for eviction of the present petitioner from the suit property mainly on the ground of default in payment of monthly rent since Sept. 1984. The defendant petitioner entered appearance and filed application under Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act. On 21-3-1989 the suit was heard ex parte and decreed in favour of the plaintiff. In 15-9-1990 the defendant petitioner filed an application under Order 9, Rule 13 of the Code of Civil Procedure alleging inter alia, that he was not properly informed of the date of hearing by his learned advocate and accordingly, he explained that he had sufficient cause for non appearance when the suit was called on for hearing. It was also pointed out that he was not a defaulter in payment of rent as the rent was regularly tendered to the Office of the Rent Controller, Calcutta. A separate application under Section 5 of the Limitation Act was filed after two days of presentation of the application under Order 9, Rule 13 of the Code praying for condonation of delay. The trial Court by Order No. 59 dated 17-7-1993 took up both the applications under Order 9, Rule 13 of the Civil Procedure Code and Section 5 of the Limitation Act for hearing and rejected both the application on contest by a single order with the finding that the defendant petitioner failed to explain the delay as mentioned in the application under Order 9, Rule 13 of the Civil Procedure Code and also under Section 5 of the Limitation Act.
3. Against the said Order No. 59 dated 17-7-1993, the defendant petitioner initially filed Civil Revision Case No. 224 of 1993 before the District Judge , Alipore and it was admitted for hearing. In course of hearing of that revisional application before the Second Court of Additional District Judge, Alipore it was detected that Order No. 59 dated 17-7-1993 was an appealable order and ultimately keeping in view the submissions made by the learned advocates of rival parties, the order was passed on 12-3-1997 allowing the withdrawal of the civil revisional application with liberty to file proper proceeding against the said order. Subsequently, Misc. Appeal No. 148 of 1997 was filed with a delay of 338 days and that delay was condoned and the Misc. Appeal was taken up for hearing. Thereafter the impugned order was passed dismissing the Misc. Appeal with the finding that the defendant petitioner failed to prove sufficient cause of his non appearance when the suit was called on for ex parte hearing.
4. At the time of hearing of this revisional application, the learned counsel for the defendant petitioner practically challenged the said order of the appellate Court mainly on the ground that the order was passed exercising a jurisdiction which was not vested in that Court by law. It was explained by the learned counsel that the Order No. 59 dated 17-7-1993 was merely an order rejecting an application under Section 5 of the Limitation Act and the trial Court had no jurisdiction to dispose of the application under Order 9, Rule 13 of the Civil Procedure Code on merits without allowing the application under Section 5 of the Limitation Act. Actually keeping in view that the said Order No. 59 dated 17-7-1993 was an order rejecting an application under Section 5 of the Limitation Act, a revisional case was actually filed and due to ill advice of the learned counsel, it was withdrawn and a Misc. Appeal was filed with the leave of the First Appellate Court. It is further contended that the First Appellate Court should have considered this aspect and could rectify the defect by taking into consideration the merits of the application under Section 5 of the Limitation Act. But the First Appellate Court practically decided the entire merit of the application under Order 9, Rule 13 of the Code ignoring the legal position. So the learned counsel concluded that this Court sitting in revision is competent to set aside the impugned order as the failure on the part of the First Appellate Court to exercise jurisdiction would lead to miscarriage of justice. On this score reliance was placed in a judgment of the Apex Court (O.P. Kathpalia v. Lakhmir Singh (Dead)).
5. The learned counsel for the defendant petitioner also argued the matter from another angle besides the illegal assumption of jurisdiction by the First Appellate Court. The argument is that the appellate Court actually failed to exercise jurisdiction vested to it by law by confirming the patently erroneous order passed by the trial Court in rejecting the application under Section 5 of the Limitation Act. On this score the learned counsel pointed out that the First Appellate Court should have considered the erroneous findings of the trial Court as regards the appreciation of evidence on delay with regard to pre decree period and subsequent erroneous finding that the defendant failed to explain the delay of two days in filing the application under Section 5 of the Limitation Act. The learned counsel also placed reliance on an unreported decision of the Apex Court disposed of on 3-3-2000 by Hon'ble Mr. Justice S. Saghir Ahmed and Hon'ble Mr. Justice R.P. Sethi in Civil Appeal Nos. 1934-1935 of 2000 (arising out of SLP Nos. 17942-17943/1999) G.P. Srivastava v. R.K. Raizada in support of the contention that past conduct of the party should not be taken into consideration and if sufficient cause for non appearance is shown ex parte order should be set aside.
6. Finally the learned counsel for the defendant petitioner placing reliance on another decision of the Apex Court in (Sushil Kr. Mehta v. Gobind Ram Bohra (Dead) Through his LRs) argued forcefully that if the Court inherently lacks jurisdiction, consent cannot confer jurisdiction. It is also contended that where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction. Accordingly the learned counsel concluded that the impugned order is to be set aside and the courts below be directed to re-examine the matter afresh.
7. On the other hand, the learned counsel for the plaintiff opposite party argued at length contending, inter alia, that the present petitioner after submitting to the jurisdiction of the appellate Court below has come up with a plea that the Court had no jurisdiction which is merely an after-thought and is against the actual state of affairs. The learned counsel pointing out the Order No. 59 dated 17-7-1993 of the trial Court argued that first of all the application under Section 5 of the Limitation Act was rejected on contest and consequently the Misc. case filed under Order 9, Rule 13 of the Civil Procedure Code was found to be barred by limitation. So in a case of this nature, the present petitioner initially filed a revision case and subsequently after withdrawing the same, filed the appeal keeping in view that by the said order of the trial Court the application under Section 5 of the Limitation Act was rejected and consequently, the Misc. case under Order 9, Rule 13 of the Civil Procedure Code was also rejected. On this scope the learned counsel placed reliance on a decision of the Apex Court reported in AIR 1967 SC 1286 (Tikka Ram v. Commissioner, Sales Tax, U.P.) in support of contention that parties submitting to jurisdiction, and taking chance of judgment in his favour cannot be permitted to take exception to jurisdiction of the Court when judgment went against him.
8. The second argument of the learned counsel of the opposite party is that the revisional power of the Court should not be exercised to set aside the concurrent findings of both the Courts below against the present petitioner who has been dragging the litigation from 1985. On this score reliance was placed in a decision of the Apex Court (Rukmini Amma v. Kalyani Sulochana). Reliance was also placed on a single Bench judgment of Rajasthan High Court (Boards & Boards Pvt. Ltd., Jaipur v. Himalaya Paper (Machinery) Pvt. Ltd., New Delhi) in support of the contention that appeal lies against an order where the trial Court found that the suit is barred by limitation and liable to be dismissed.
9. After a careful scrutiny of the materials on record, it transpires that the trial Court without assuming any jurisdiction under Order 9, Rule 13 of the Civil Procedure Code and after disposing of the applications under Section 5 of the Limitation Act virtually misdirected himself in disposing of both the applications by a single order. The first question before the trial Court was whether the delay in filing the application under Order 9, Rule 13 of the Civil Procedure Code was to be condoned or not. Under Section 5 of the Limitation Act the Court had the jurisdiction to consider this aspect. But ignoring this provision of law, he went on disposing of the application under Order 9, Rule 13 of the Civil Procedure Code on merits. So it is sufficiently clear that he had no jurisdiction to go into the merits of the application under Order 9, Rule 13, of the Civil Procedure Code without disposing of the application under Section 5 of the Limitation Act. So the said order of the trial Court was passed without jurisdiction and practically the First Appellate Court also did not consider this aspect and came to an erroneous finding that the application under Order 9, Rule 13 of the Civil Procedure Code was rightly dismissed on merits. It is rightly contended that revision lies against an order of dismissal of an application under Section 5 of the Limitation Act and an appeal lies against the dismissal of an application under Order 9, Rule 13 of the Civil Procedure Code. But as the trial Court by a conjoint order disposed of both the applications, the petitioner defendant was placed in a legal dilemma as regards next course of action. Firstly he filed a revisional application understanding that the order was rejection of an application under Section 5 of the Limitation Act but again he opted to withdraw the same and filed a misc. appeal as in the ordering portion of the order dated 17-7-1993, the trial Court came to a finding that the misc., case is barred by the limitation. True it is that the defendant petitioner with-drew the revisional application and filed the appeal but it was the First Appellate Court who was to rectify the defect before the final disposal of the appeal before him. Here the question is lack of inherent jurisdiction, as opposed to territorial or pecuniary jurisdiction and by consent. The lack of jurisdiction cannot be cured The First Appellate Court practically exercised a jurisdiction which was not vested in him and he came to an erroneous finding by allowing the appeal and confirming the dismissal of the application under Order 9, Rule 13 of the Civil Procedure Code on merits .
10. Keeping in view the above discussion it is concluded that the impugned order is liable to be set aside and consequently the order passed by the trial Court with regard to dismissal of the misc. case is also to be set aside as both the Courts below passed order in a matter in which they had no jurisdiction to pass any order . So in setting aside the impugned order and also the Order No. 59 dated 17-7- 1993, the trial Court is directed to dispose of the application under Section 5 of the Limitation Act first on merits as early as possible and thereafter to make further orders on the application under Order 9, Rule 13 of the Civil Procedure Code in accordance with law. But keeping in view the delay caused by the present petitioner defendant, a sum of Rs. 2,000/- is awarded as cost against him payable to the plaintiff opposite parties in the trial Court within one month from the date of communication of this order to the trial Court. Let an urgent xerox certified copy of this order be supplied to the parties, if applied for, within one week on payment of usual requisites. Parties are at liberty to take gist of this order for communicating the trial Court.