Patna High Court
Birendra Nath Singh vs Santa Devi And Ors. on 10 January, 1991
Equivalent citations: AIR1992PAT146, 1991(39)BLJR1098, AIR 1992 PATNA 146, 1991 BLJR 2 1098 (1991) 2 BLJ 353, (1991) 2 BLJ 353
ORDER Binod Kumar Roy, J.
1. At the admission stage itself heard Mr. S.S. Dwivedi and Mr. S.K. Verma, learned counsel for the parties at length and this case is being disposed of on its merit
2. The petitioner Assails an order dated 11-12-1990 passed by Sri T.L. Verma, District Judge, Patna dismissing his Title Appeal No. 110 of 1990 as being barred by limitation.
3. Against the petitioner and his brothers.
opposite parlies Nos. 2 and 3, though in the revision petition erroneously shown as plaintiffs-opposite party, Title suit No. 9 of 1987 was filed by the landlady-opp. party, No. 1 for their eviction on the ground of default in payment of rent as well as for recovery of arrears of rent to the tune of Rs. 25,137/-. During the pendency of the suit the landlady filed an application under Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, (982 for directing the petitioner and opposite parties Nos. 2 and 3 to deposit arrears of rent. The application was allowed by order dated 17th July, 1989 directing non-compliance of the said order to entail in striking off the defence of the tenant as contemplated under that section itself. Mr. Verma, learned counsel for the opp. party No. 1 states that the said order was challenged in C.R. No. 1729 of 1989 which was barred by limitation and it was dismissed but he is unable to say whether for default or summarily. Mr. Dwivedi, learned counsel appearing for the petitioner says that he is not in a position to state as to what happened to the fate of that civil revision application, Mr. Verma, however, proceeds to point out that because of non-compliance of the order dated I7th July, 1989 the defence was struck off. From paragraph 5A of the certified copy of the judgment dated 23rd June, 1990, decreeing the suit, it appears that the defence of the petitioner as also of the opp. parties Nos. 2 and 3 were struck out by the Court. From paragraph 5C of the said judgment it appears that the defendants led no evidence in support of their defence taken in the suit. At the time of argument neither defendants nor their counsel addressed the trial court though it appears from the judgment that defendant No. 1 personally examined the witnesses of the plaintiff. The suit was finally, decreed, by judgment and decree dated 23-6-1990.
4. Against the judgment and deeree aforesaid the Defendant No. 1 (petitioner) alone went up in appeal by filing a Memo randum of Appeal on 15-11-1990.
5. The petitioner also filed an application under Section 5 of the Limitation Act (Annexure-1 to the revision petition) stating as follows : :
(i) Although the petitioner had obtained the certified copy of judgment and decree Deepak Kumar Singh, the son of landlady came to him on 20th July, 1990 along with Yogendra Singh and Nageshwar Singh, two respectable persons of the locality.
(ii) They requested the petitioner to end the litigation by entering into a compromise and settling the dispute amicably and the petitioner should refrain from filing an appeal which would only increase one more litigation.
(iii) Believing the said proposal as sincere and bona fide the appeal was not filed by him though certified' copy of the judgment 'and' decree was obtained before expiry of the' period of limitation.
(iv) Several sittings were held, by the two arbitrators Yogendra and Nageshwar the ,last one was on 14-11-1990, but unfortunately the compromise could not materialise due to the objection raised by the landlady and her son.
(v) Thus was ho wilful default or laches in filing the appeal.
6. A rejoinder was filed by the landlady to the said limitation petition but has not been appended, along with the revision application. The rejoinder of the landlady has been filed as Annexure-A to her counter-affidavit in which she has stated as follows:-- (i) The story of compromise etc are all incorrect, concocted and afterthought. Neither she nor her son ever contacted the petitioner, (ii) She does not know the persons named Yogendra Singh'and Nageshwar Singh nor were they authorised by her. (iii) In a fair rent proceeding the rent of the premises was fixed at Rs. 2.650/- per month by the House Controller against which an appeal was filed but in the said appeal there was direction to deposit the rent fixed which was also not deposited and ultimately the appeal was dismissed. Against the said order a revision was filed before the Commissioner : who too directed to deposit the rent which was, also not complied with, All the said orders arc pending before this court in. C.W..I.C. No. 7661 of 1988 in which operation of the said orders were not stayed by this Court.
7. The limitation matter as heard by the learned District-Judge 0116-12-1990 and 7-12-1990 was fixed for giving 'reply by the petitioner. At that stage a petition was filed by the petitioner to 'take' oral evidence. The said prayer was objected by the opp. party no. 1. The learned District Judge by the impugned order dismissed the appeal of the petitioner holding as follows : --
(i) The appeal has been filed 111 days after ' the expiry of limitation.
(ii) Due to the conduct of the appellant it is difficult to believe his case of amicable settlement.
8. Mr. Dwivedi, learned counsel appearing for the petitioner made a solitary submission, that the learned District Judge has committed ajurisdictional error in not taking oral evidence as requested by the petitioner and accordingly the order impugned shouid be set aside.
9. Mr. Verma, learned counsel appearing for the opp. party No. 1 on the other hand referring to the counter-affidavit and supple mentary Counter-Affidavit submits that no jurisdietional error has been committed by the learned District Judge by refusing to take oral evidence as it was open for the petitioner to file affidavits of the persons referred to by him to prove his defence. The prayer to lead oral evidence was made after the conclusion of arguments and not earlier. The petitioner wanted to protract the litigation and continue in possession without paying any rent.
10. Leading of oral evidence while adjudicating an application under Order XIL Rule 3(2) of the Code of Civil Procedure or Section 5 of the Limitation Act is not permissible. The question of limitation is being decided on the basis of the affidavits. The plea of leading oral evidence, in my view, in the peculiar facts and circumstances, was correctly not allowed inasmuch as it was open for the petitioner first to have filed the affidavits of the persons named by him in the limitation petition or in any view of the matter no sooner the rejoinder was filed and not after the close of arguments on 6-12-1990 and while giving reply on 7-12-1990.
11. It is true that Sec. 5 of the Limitation Act has to be interpreted liberally but as per the facts stated in paragraphs 4 and 5 of the limitation petition, the petitioner asserts that even though he had taken certified copy of the judgment of the trial court due to talks of compromise on 20-7-1990 the appeal was not filed. Paragraph 9 of the supplementary counter-affidavit shows that certified copy of the judgment was obtained by the petitioner on 21-7-1990. This proves his case as incorrect.
12. The facts and circumstances are thus such which do not in spite even my conscience to exercise my discretion in favour of the petitioner to hold that while adjudicating an application under Order XLI, Rule 3A of the Code of Civil Procedure or Section 5 of the Limitation Act, though not provided under Order XLI, C.P.C. or Section 5 of the Limitation Act to take oral evidence.
13. In the result, I do not find any merit in this civil revision application. It is accordingly dismissed. But there shall be no order as to cost.
14. The stay petition also stands rejected.