Calcutta High Court (Appellete Side)
Gobinda Malik vs Gopal Chandra Ghosh on 6 April, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
1 6.4.2011
C.O.808 of 2011 Gobinda Malik Versus Gopal Chandra Ghosh Mr. Nemai Chand Betal Mr. Sanjib Kumar Ghosh ... for the petitioner Mr. Debjit Mukherjee ... for the opposite party The petitioner was the defendant in Title Suit No.193 of 2003. It was decreed ex-parte on December 15, 2004 by the learned Civil Judge (Junior Division), 5th Court, Howrah.
Alleging that he had not been served with summons, the petitioner filed an application under Order IX Rule 13, Code of Civil Procedure (hereafter the Code) praying for setting aside of the said ex-parte decree. The application was registered as Misc. Case No.36 of 2005. Since there was delay in presentation of the application under Order IX Rule 13, the petitioner also filed an application under Section 5 of the Limitation Act (hereafter the Act).
By order dated December 4, 2010, the learned Judge of the trial Court rejected the application under Section 5 of the Act and consequently, the application under Order IX Rule 13 of the Code also stood rejected, being barred by limitation. Misc. Case No.36 of 2005 was accordingly dismissed. This 2 order is under challenge in the present revisional application under Article 227 of the Constitution of India.
At the outset, Mr. Mukherjee, learned advocate appearing for the decree-holder/opposite party, contended that the revisional application is not maintainable. He referred to the decision of the Supreme Court reported in AIR 2005 SC 226 (Shyam Sunder Sarma vs. Pannalal Jaiswal & ors.) in support of his contention that the impugned order is appellable. According to him, Order XLIII Rule 1(d) of the Code provides that an appeal shall lie under the provision of Section 104 thereof against an order rejecting an application for an order to set aside a decree passed ex parte. Since remedy by way of an appeal is open to the petitioner, this Court ought to hold the present application as not maintainable.
Mr. Mukherjee, however, in his usual fairness brought to my notice a decision of a learned single Judge of this Court dated August 5, 2010 passed in C.O. No.3817 of 2005 [Md. Oli Sk. (since deceased) & ors. vs. Tarani Mahato & anr.]. The learned Judge was considering whether the learned District Judge concerned was justified in rejecting an application under Section 5 of the Act praying for condonation of delay in presentation of a first appeal. While holding that the Section 5 application ought to have been allowed, the learned Judge 3 considered the decision in Shyam Sunder Sarma (supra) and held that that case differs on factual aspects. Ultimately, His Lordship overruled the contention of the opposite party that rejection of the application under Section 5 of the Act, thereby refusing to condone the delay in preferring the appeal, should have been subjected to appeal and not revision under Article 227 of the Constitution of India.
The said decision was challenged in a special leave petition before the Supreme Court, which has since been dismissed by an order dated October 25, 2010.
Per contra, learned advocate Mr. Betal representing the petitioner contended that an application under Article 227 is the only remedy against an order rejecting an application under Section 5 of the Act and, therefore, this Court ought to entertain it. He referred to the decision of the Supreme Court reported in 2010 (1) CHN 222 (SC) (S.B. Minerals v. MSPL Limited) in course of his submission.
I have heard learned advocates for the parties. In S.B. Minerals (supra), an order admitting a second appeal was impugned before the Supreme Court. It was held that an order admitting a second appeal preferred under Section 100 of the Code is neither a final order nor an interlocutory/interim order and hence the special leave 4 petition was dismissed. I have failed to comprehend the materiality of this decision for deciding the objection raised by Mr. Mukherjee.
Having considered the reasoning assigned in Shyam Sunder Sarma (supra) as well as the decision reported in AIR 1956 SC 367 (Messrs. Mela Ram & Sons v. Commissioner of Income Tax, Punjab), which was relied on there, I am of the view that an application under Order IX Rule 13 of the Code does not cease to be an application within the specific terms of the concerned statutory provision merely because it is presented out of time. It ought to be treated as an application under Order IX Rule 13 of the Code without, however, overlooking the fact that it is irregular or incompetent, being time-barred. Condonation of delay in presenting such application would render it competent or regular. Rejecting a time-barred application under Order IX Rule 13 of the Code by not condoning the delay in its presentation nonetheless results in the Court not accepting the plea for setting aside the ex parte decree and such an order would be appellable in terms of Section 104 of the Code read with Order XLIII Rule 1(d) thereof.
The learned Judge in Md. Oli Sk. (supra) distinguished the decision in Shyam Sunder Sarma (supra) by observing that 5 the facts were not quite similar to those at hand and rejected the contention that a second appeal would lie against an order rejecting the application under Section 5 of the Act praying for condonation of delay in presentation of the first appeal. The facts here are quite different and, therefore, the said decision is not relevant for a decision on this application.
I may place on record that it has also been brought to my notice that while disposing of C.O. 2954 of 2007 (Mukdeo Prasad vs. Parimalendu Ghosh & ors.), another learned single Judge of this Court upon consideration of the decision in Shyam Sunder Sarma (supra) held in the order dated March 18, 2010 that an order rejecting an application under Section 5 of the Act is an appellable order.
The decisions in Md. Oli Sk. (supra) and Mukdeo Prasad (supra) on identical facts are at variance but since the facts of the present case are absolutely different, I have not considered it necessary to refer the issue for consideration by a larger bench.
Since remedy by way of an appeal is open to the petitioner, I am not inclined to entertain this revisional application. It stands dismissed, without costs. 6
However, this order shall not preclude the petitioner to pursue the remedy the Code provides to him in accordance with law.
The certified copy of the impugned order shall be returned to the learned Advocate for the petitioner provided photocopy of the same is made over to the Assistant Court Officer, which shall be retained with the records.
Urgent photostat certified copy of this order shall be made available to the applicant at an early date.
(DIPANKAR DATTA, J.)