Patna High Court
Musammat Dukhno vs Munshi Sahu on 11 February, 1919
Equivalent citations: 52IND. CAS.439, AIR 1919 PATNA 543
JUDGMENT Manuk, J.
1. The facts upon which this application is made to us in our revisional jurisdiction are as follows:
The respondent before us instituted a suit on the 17th May 1917 against numerous defendants; the suit was dismissed under Order IX, Rule 8, of the Civil Procedure Code on the 24th April 1918. On the 8th May 1918 the plaintiff (now respondent) applied under Order IX, Rule 9, to set aside the dismissal and restore the suit. On this application the learned Munsif before whom it was filed recorded the following order:
Class of suit, copy of judgment, vdkalatnama, written process and talbana are not filed. Returned to be re filed after removal of defects by 20th May 1918.
2. On the 17th May, for some reason not apparent, we find another order by the Munsif to the effect that the previous order had not been complied with, and the application was again returned to be re filed by the 8th June after removal of the defects. The next order is on the 11th June 1918, and this is to the effect that, as the previous orders are still uncomplied with, the application is once more returned to be re-filed by the 15th of June 1918. On the 15th of June it transpired that the application related to a suit valued above Rs. 1,000, and it was accordingly "returned for presentation before the proper Court."
3. The matter next came up on the 22nd June, when the order (this time passed apparently by a Subordinate Judge) runs: "Nature of the suit and date of disposal of the same are not given. Returned for compliance, and re-file within a week."
4. It was then re filed after amendment on the 29th Jute, when the record was sent for, find it was ordered that the application should be put up with the record on the 16th July. On the 18th July, however, a note was submitted to the learned Subordinate Judge by his office asking for directions as to whether the application should be registered in his Court or be sent to the first Munsif, who was "vested with power to try suits of special jurisdiction." On the 9th July the learned Subordinate Judge directed that the application should be returned to be filed before the first Munsif, who is vested with special jurisdiction. The matter next came upon the 18th July, presumably before the first Munsif. On that date the office submitted a note to the learned Munsif, pointing out that the application was originally filed as under Order IX, Rule 13, and hence a copy of the judgment was demanded together with process fees and a vakalatnama, and it was not clear why the application was made under Order IX, Rule 13, and not under Order IX, Rule 9. The serious laches of the petitioner in repeatedly failing to comply with the orders of the Court and the present defects were also set out. Amongst other defects still present were (i) the process fee filed was still inadequate, and (ii) the orders of the 9th May had not yet been complied with. It was also pointed out by the office that no cause had been shown for the delay in filing the petition within the time limit of 30 days from the dismissal as required by Statute. In the face of this report all that the learned Munsif did was to record a peremptory order in a single word, "admit." This was a week later, on the 25th July, and without any notice to the defendants. On that date an order was also entered in the order-sheet in the following terms:
Application under Order IX of the Code of Civil Procedure admitted. Register. Petitioner to file deficit talbana Re. 1 by 3rd August 1918.
5. Finally, on the 24th of August 1918 the Pleaders on behalf of the parties were heard, and the learned Munsif, without applying his mind in the least to the serious question before him as to whether the application was filed within time or not, proceeded to pass a formal order restoring the case on the applicant paying Rs. 5 to the respondent. It is noticeable that cot a single argument adduced on behalf of the present petitioner before us finds a place in the learned Munsif's order; the Munsif seems to have endeavoured to justify his previous ill-advised order "admit" by accepting various extenuating circumstances urged on behalf of the present respondents for their original default. Now under these circumstances we are asked by Mr. Jagarnath Prasad, on behalf of some of the defendants to the suit, to hold that the learned Munsif has acted without jurisdiction, inasmuch as on the 25th of July, when he admitted the application, and on the 24th August, when he set aside the dismissal, the application was long since barred by time. On the other band, Mr. Roy, the learned Vakil for the plaintiff, has strenuously argued that the application having been filed within time on the 9th May, it was open to the Court under Section 148 of the Civil Procedure Code to extend the period from time to time within its discretion and that having done so, there was no reason why on the 25th July the Court should not have admitted the application.
6. I am of opinion that the discretion granted by Section 148 cannot be arbitrarily exercised in matters to which the rules of limitation apply, and in which by those rules the Court can only extend the time after a proper judicial consideration of the cause shown under Section 5 or the fraud established under Section 18 of the Limitation Act. Now in the case before us we hold that the application filed on the 9th May was no application at all within the provisions of Order IX, Rule 9. The nature of the suit, the date of disposal of the same, the correct provisions of the Code under which the application was made, and various other matters necessary for the Court to consider the application at all and entertain it were lacking; these defects were pointed cut by the Munsif and his office to the petitioners, but no attempt was made to remedy these defects within time; and, therefore, all arbitrary extensions of time to re-file the application after the thirty days had elapsed were beyond the jurisdiction of the Munsif to grant.
7. Mr. Roy has also referred us to the decision in Jhotu Lal Ghose v. Ganouri Sahu 46 Ind. Cas. 176 : 3 P.L.J. 376, and he contends that the Munsif, having rightly or wrongly admitted the application and restored the suit, has acted within his jurisdiction, and that, therefore, we should not interfere under Section 115 of the Civil Procedure Code. Now the case of Jhotu Lal Ghose v. Ganouri Sahu 46 Ind. Cas. 176 : 3 P.L.J. 376 is distinguishable from the case before us in one very important respect. In that case the Munsif had considered the question of limitation, had applied his mind to the objection that the application was barred by limitation and bad decided in fact that it was not so barred. It was argued on behalf of the petitioner there that the Munsif had fallen into an error in holding that the application was not barred by limitation. Under those circumstances the learned Judges held that even if it were conceded that the Munsif had fallen into an error either of law or of fact that was not an error in the exercise of jurisdiction which could be interfered with by this Court under Section 115 of the Civil Procedure Code. Now in the case before us there is not a single indication throughout the numerous orders that any of, the Courts dealing with the petition applied its mind in any manner whatsoever to the question of limitation; nor indeed can we see how the learned Munsif, who eventually-admitted the application on 25th July 1918, could have done so, having regard to the fact that it was brought prominently to his notice that no reason for the neglect to file the petition within time had been stated in any of the numerous petitions to the Court, or upon any of the numerous occasions on which the Court was approached. There having been, therefore, no application of the learned Munsif's mind to the question of limitation at all, and he having arbitrarily admitted the petition and restored the suit long after the period of limitation had expired, the impeached orders were, in our opinion, made without any jurisdiction whatsoever. It would, we think, be disastrous to give effect to Mr. Boy's contention that a Court may keep alive a cause of action for an indefinite period of time by granting, without cause shown and without consideration, indulgence after indulgence under Section 148 of the Civil Procedure Code to litigants who are guilty of the grossest laches, and who refuse to comply with the orders of the Court. The Privy Council have more than once animadverted on the law's delays in this country; and to allow the subordinate Courts to proceed as the learned Munsif has in this particular case, without correction or interference by this Court under Section 115, Civil Procedure Code, would simply be to encourage the evil which their Lordships of the Privy Council have so often condemned.
8. For all these reasons we set aside the orders of the Munsif, dated the 25th July 1918, and the 24th August 1918, with costs.
Atkinson, J.
9. I just desire to say that in my opinion there was to application before the Court to restore the suit that was originally dismissed under Order IX, Rule 9, on the 25th July 1918 and that on that date limitation had expired, and the application presented was barred, and, in my opinion, the Court of the first Munsif of Monghyr had no jurisdiction to entertain the application which was then Statute-barred. Any other application of the law would render the law of limitation nugatory and senseless, and I am not aware of any authority that can be cited in support of the argument that has been addressed to us.