Calcutta High Court
Kakali Sardar vs Sabita Mondal & Ors on 14 June, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee, Siddhartha Chattopadhyay
OD-1
APO No. 310 of 2017
GA No. 1826 of 2017
GA No. 1827 of 2017
in
PLA No. 318 of 2008
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
In the goods of :
UTTAL SARDAR, DECEASED
And
KAKALI SARDAR
Vs.
SABITA MONDAL & ORS.
Appearance
Mr. Kamalesh Bhattacharya, Adv.
Mr. R. Islam, Adv.
Mr. S. Patra, Adv.
Mr. Haradhan Banerjee, Adv.
Mr. A. Pain, Adv.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
And
The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY
Date : June 14, 2017.
The Court : The delay in preferring the appeal is condoned. Good grounds
have been made out for the delay, inter alia, since a previous appeal was dismissed on
a technical ground of one of the parties not being impleaded therein.
The appellant claims to be the widow of the testator and she applied for
revocation of the grant of probate on the ground that the appellant was not cited. It is
submitted by the respondents that the appellant was not the legally married wife of
the testator; that a declaratory suit has been instituted by the respondents as to the 2 status of the appellant in which an interim order is enjoyed by the respondents; and, that the application for revocation of grant was filed beyond the period of limitation as the appellant actively concealed the appellant's previous notice and knowledge of the issuance of the grant in course of the suit between the parties.
The grievance of the appellant is that the application for revocation of the grant was taken up on March 18, 2015 and dismissed on merits despite the appellant not being represented; and, further, that a subsequent application for recalling the order dated March 18, 2015 has been dismissed in limine by the order impugned dated November 16, 2016. It is, however, submitted on behalf of the respondents that the application for revocation of grant was dismissed on the ground of limitation only.
It is elementary that when a plaintiff or a petitioner or an applicant is not present to pursue a suit or a petition or an application, the Court may only dismiss the suit or the petition or the application for default. The Court has no need to go into the merits of the matter or pronounce an order on merits when the suitor is not present to pursue the matter.
Notwithstanding the command in Section 3 of the Limitation Act, 1963, it cannot be lost sight of that limitation is more often than not a mixed question of law and fact. The fundamental basis to a point of limitation is the date relevant to be taken into consideration. In the absence of a suitor, a particular date cannot be taken up to be relevant for the purpose of reckoning limitation without the suitor having any say in such aspect of the matter. Thus, the submission of the respondents that the Court merely followed the command of Section 3 of the Limitation Act cannot be accepted to be an exception to the general rule that in the absence of the applicant the application may only be dismissed for default.
Since the order dated March 18, 2015 was passed on the merits of the matter in the absence of the appellant who had made the application, such order had 3 to be set aside or recalled for the mere asking. In the order impugned dated November 16, 2016 refusing to recall the order dated March 18, 2015, there is clear error. The order impugned is set aside and the appeal is allowed by allowing the appellant's recalling application before the trial court and setting aside the order dated March 18, 2015.
APO No. 310 of 2017 along with GA No. 1826 of 2017 and GA No. 1827 of 2017 are disposed of.
There will be no order as to costs.
(SANJIB BANERJEE, J.) (SIDDHARTHA CHATTOPADHYAY, J.) sg.