Calcutta High Court (Appellete Side)
Ab Yajur Fibres Limited vs Dharmendra Tiwari And Others on 9 October, 2023
Author: Harish Tandon
Bench: Harish Tandon
33 09.10. FMAT 449 of 2023
2023 IA No. CAN 1 of 2023
IA No. CAN 2 of 2023
Ct. No. 04
Ab Yajur Fibres Limited
Vs.
Dharmendra Tiwari and others.
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Mr. Rupak Ghosh, Mr. Chayan Gupta, Mr. Souradeep Banerjee, Mr. Raj Basu.
... for the appellant.
Mr. Srijib Chakraborty, Mr. Sumitava Chakraborty, Mr. Bijoy Basu.
... for the respondents.
Re: CAN 1 of 2023 There is a delay of 362 days in preferring the instant appeal. An application under Section 5 of the Limitation Act is taken out for condonation thereof stating that the plaintiff/appellant was pursuing the remedy under Article 227 of the Constitution of India before this Court against the impugned order in good faith and on the advice of the Counsel, which was ultimately found to be incompetent and thereafter the instant appeal has been filed.
Certain dates are required to be disclosed in order to apply the provisions of Section 14 of the said Act. The order impugned was passed on 23rd September 2022 by which the trial Court refused to extend the ad interim order of injunction granted in favour of the plaintiff/appellant. The application under Article 227 of the Constitution of India was taken out immediately thereafter and it appears that the same was moved before the Single Bench on 18th October 2022. The order would reveal that the Single Bench was satisfied that the 2 interim order ought to have been extended and, in fact, re-impose the interim order, which continued until 18th September 2023, when the respondents herein appeared and raised an objection on the maintainability of the said proceeding.
It is sought to be contended before the Single Bench that though an application was captioned under Section 151 of the Code of Civil Procedure but, in fact, seeks for extension of an order of temporary injunction and, therefore, any order passed thereupon would be deemed to have been passed in exercise of power under Order XXXIX rule 1 and 2 of the Code and, therefore, a remedy lies by way of an appeal under order XLIII Rule (1)(r) of the Code.
On the basis of the aforesaid stand having taken, which would further be evident from the findings returned in the said order dated 18th September 2023, the Single Bench vacated the interim order as the proper remedy is by way of an appeal. Immediately upon the vacation of the interim order, the instant appeal is filed on 27th September 2023 i.e. within nine days therefrom and, therefore, it cannot be said that the appellant was not diligent in pursuing the matter.
Section 14 of the Limitation Act provides that for the purpose of computation of period of limitation if a proceeding relates to the same matter in issue is prosecuted in good faith in a Court, which from the defect of jurisdiction or other cause of a like nature is unable to entertain it, such period shall be excluded. The expression "proceeding before the wrong forum", which was ultimately dismissed for defect of jurisdiction or cause of like nature has to be construed in the above perspective, more particularly, when the Single Bench held that the proper remedy is by way of an appeal.
However, Counsel for the respondents vociferously submits that such exclusion cannot be presumed unless the plaintiff/appellant shows a due diligence in 3 prosecution with another civil proceeding. In order to interpret the statutory provision, it is not advisable that a portion therefrom is to be culled out and to assign independent meaning thereto, but the proper course for interpretation of statutory provision is to read the language in its entirety and if there is no ambiguity in conveying the intention by the legislature any external aid should be eschewed.
It is no doubt true that the proceeding must be before a wrong forum and should have been diligently proceeded with, as no negligence can be attributed in respect of the said proceeding and, therefore, the expression "due diligence" has to be understood in such perspective and not in the manner as argued by the Counsel for the respondents.
We find that within a period of thirty days from the date of the order dated 23rd September 2022, the revisional application under Article 227 of the Constitution of India was taken out, which would be manifest from the fact that the said revisional application was entertained on 18th October 2022, much within the period of limitation provided for filing an appeal.
The order passed by the Single Bench was vacated on 18th September 2023 and within nine days therefrom the present appeal has been filed and, therefore, it cannot be said that there is negligence and/or carelessness attributed to the conduct of the appellant.
In view of the fact that the proceeding was prosecuted without any delay before the wrong forum and having held so, approached by filing the instant appeal, it is a fit case where the appellant is entitled to an exclusion of time in computing the period of limitation under Section 14 of the Limitation Act.
Accordingly, application for condonation of delay being CAN 1 of 2023 is hereby allowed. The delay in filing the appeal is condoned. The appeal shall be formally registered in the docket of the Court.
4Let the appeal and the application for injunction being CAN 2 of 2023 be listed on 11th October 2023 under the heading "Order XLI Rule 11".
(Harish Tandon, J.) (Prasenjit Biswas, J.)