Calcutta High Court (Appellete Side)
Mahmood Ali Sardar & Others vs Hossain Ali Mondal Being Dead on 14 September, 2011
Author: Harish Tandon
Bench: Harish Tandon
1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Mr. Justice Harish Tandon C.O. 1267 of 2004 Mahmood Ali Sardar & Others Vs. Hossain Ali Mondal being dead Hasem Ali Mondal & Others.
For the Petitioners :Mr.HiranmoyBhattacharya,
For the Opposite Parties : Mr. SandipRoy Chowdhury
: Ms. Mashumita Patra,
Heard on : September 12, 2011
Judgment on : September 14, 2011
HARISH TANDON, J. ;- A point is raised, in this revisional application, as to whether an order rejecting an application under Section 5 of the Limitation Act, seeking condonation of delay in filing an application under Order 9 Rule 13 of the Code of Civil Procedure is revisable or appealable.2
The learned Advocate appearing for the opposite parties raised a preliminary objection as to the maintainability of the revisional application against an order rejecting an application for condonation of delay under Section 5 of the Limitation Act as it tantamounts to the rejection of an application under order 9 Rule 13 of the Code of Civil Procedure.
He further submits that an appeal shall lie against an order of dismissal of an application under Order 9 Rule 13 of the Code of Civil Procedure under Order 43 Rule 1(d) of the Code.
In support of his contention, he relies upon a judgment of the Apex Court in the case of Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others, reported in (2005) 1 Supreme Court Cases
436.
Mr. Hiranmoy Bhattacharjee, the learned Advocate appearing for the petitioner refutes the contention of the opposite parties and relies upon an unreported judgment passed by the learned Single Bench of this court in the case of Md. Oli Sheikh (since deceased) & Others Vs. Tarani Mahato & Another (C.O. No. 3817 of 2005) decided on 5th August, 2010, where the judgment of the Apex Court in the case of Shyam Sundar Sarma (supra) was considered and distinguished.
3In reply, Mr. Hiranmoy Bhattacharya, the learned Advocate for the petitioner placed before me that the judgment of the another Single Bench of this court in the case of Shri Gobinda Malik Vs. Sri Gopal Chandra Ghosh (C.O. No. 808 of 2011) to contends that the said decision rendered in the case of Md. Oli Sheikh (supra) are distinguished on fact.
Having considered the respective submissions made above, the Apex Court in the case of Shyam Sundar Sarma (supra) was considering the matter where an application under Section 5 of the Limitation Act in preferring an application under Order 9 Rule 13 of the Code of Civil Procedure, upon rejection is capable of being assailed in revision or before the appellate court.
The Apex Court held that the dismissal of an application for condonation of delay amounts to a dismissal of the proceeding itself.
The Single Bench of this court in the case of Md. Oli Sheikh (supra) was considering the matter where a Title Appeal was filed against the contested decree belatedly and an application under Section 5 of the Limitation Act was rejected by the First Appellate Court. In such perspective it was held that the revision is maintainable.
However, the subsequent co-ordinate bench in the case of Sri Gobinda Malik (supra) dealing with a matter relating Order 9 Rule 4 13 of the Code of Civil Procedure applied the ratio of the Apex Court in the case of Shyam Sundar Sarma (supra) and distinguished the judgment rendered in the case of Md. Oli Shaikh (supra) on facts.
I find that the judgment of the co-ordinate bench in the case of Md. Oli Shaikh (supra) is contrary to the ratio laid down by the Apex Court in the case of Shyam Sundar Sarma (supra).
I respectfully disagree with the judgment rendered by the co- ordinate bench in the case of Md. Oli Shaikh (supra) which has not correctly applied the ratio laid down by the Apex Court in the Shyam Sundar Sarma (supra).
I am not unmindful of the legal principle that the co-ordinate bench should not venture to upset the decision of the equal strength but the judicial discipline demands that the matter should be referred to a larger bench (See C.S.T. Vs. Pine Chemicals Limited, reported in (1995) 1 Supreme Court Cases 58).
In view of the conflicting decision rendered by the two co- ordinate bench of this court in the case of Md. Oli Shaikh (supra) and Shri Gobinda Malik (supra), I feel that it would be proper that the matter be referred to the Hon'ble Chief Justice for constituting a larger bench to answer the reference indicated below:
Whether the ratio laid down in Shyam Sundar Sarma's case by the Supreme Court is not applicable in case of a rejection of an 5 application under Section 5 of the Limitation Act in Title Appeal or it has a restricted applicability in respect of the cases where an application under Section 5 of the Limitation Act is filed in a proceeding initiated under Order 9 Rule 13 of the Code.
Accordingly, the matter is sent to the Hon'ble Chief Justice for constituting the larger bench.
(Harish Tandon, J.)