Full Judgment Text
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PETITIONER:
MANINDRA LAND AND BUILDINGCORPORATION LTD.
Vs.
RESPONDENT:
BHUTNATH BANERJEE AND OTHERS
DATE OF JUDGMENT:
02/05/1963
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION:
1964 AIR 1336 1964 SCR (3) 495
CITATOR INFO :
RF 1964 SC1341 (16)
F 1966 SC 153 (12)
R 1966 SC 439 (4)
R 1972 SC2379 (9)
RF 1978 SC1341 (10)
ACT:
Substitution-Application beyond time for setting aside
abatement-Lower Court’s order set aside by High Court in
revision-Propriety-Power of High Court in revision-Code of
Civil Procedure, 1908 (Act V of 1908), s. 115, O. XXII. rr.
4, 9 (2),(3)-Indian Limitation Act, 1908 (Act 9 of 1908),
ss. 3,4,5 Arts. 171,176.
HEADNOTE:
The appellant made an application beyond time for
substitution, on setting aside the abatement of the suit he
had filed against the father of the respondents. The
Subordinate judge held that the appellant was prevented by
sufficient cause from continuing the suit and allowed the
application. The High Court in revision, disagreed with the
Subordinate judge and held that the appellant had entirely
failed to make out any good cause for applying much later
than the period allowed by law.
Held that it was not open to the High Court to question
the findings of fact recorded by a subordinate court In
exercise of its revisional jurisdiction under s. 115 Code of
Civil Procedure, which, it is well settled, applies to cases
involving questions of jurisdiction.
Balakrihna Udayar v. Vasudeva Aiyar, (1917) L.R. 44
I.A. 261, M/s. A. Batchamian Saheb and Co. v. A. N.
Channiah G.A. Nos. 452 and 487/62 decided on 19.10.62, joy
Chand Lal Babu v. Kamalaksha Chaudhury, (1949) L.R.76 I.A.
131 and Deshardeo Ohamria v. Radha Kisses Chamria [1953]
S.C.R. 136, referred to.
If in construing the necessary provisions of the
Limitation Act or in determining which provision of the Act
applies, the Subordinate Court comes to an erroneous
decision, it is open to the Court ill revision to interfere
with that conclusion.
496
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Held further, that the Subordinate Court had exclusive
jurisdiction to decide both the questions of fact, viz.,
whether the appellant had sufficient cause for not making
an application for setting aside the abatement. within the
time prescribed and whether the appellant was prevented from
sufficient cause from not making an application for the
substitution of thelegal representatives within the
prescribed time.
Babu Rain v. Munna Lal (1927) I.L.R. 49 All. 454, Hars
Bhikaji v . Naro Vishvanath (1885) I.T ..R. 9 Bom. 432,
Dwarka v. Union of India, (1954) I.T.R. 33 Pat. 176 and
Basantilata v. Amar Nath, A.I.R. (1950) Cal. 41 1,
distinguished.
JUDGMENT:
CIVIL APPELLATLE JURISDICTION : Civil Appeal No.
524/62.
Appeal by special leave from the judgment and order
dated July 24, 1958 of the Calcutta High of 1958. Court in
Civil Revision No. 748 of 1958
N. C. Chatterjee, E. Udayaratnam and D. N. Mukherjee,
for the appellant.
B Sen and S. Gosh, for respondents Nos. 1 to 3.
1963. May 2. The judgment of the Court was delivered
by
RAGHUBAR DAYAL J.--This appeal, by special leave, is
directed against the order of the Calcutta High Court
disallowing the application of the appellant under sub-r.
(2) of r. 9 of Order XXII of the Code of Civil Procedure,
hereinafter called the. Code, for the setting aside of the
abatement of the suit it had instituted against the father
of the respondents.
The suit was instituted on April 29,1952, by the appellant
corporation against Kalosashi Banerji, father of the
respondents, to recover a sum of money due on a mortgage by
deposit of title deeds. The defendant contested the suit.
Ultimately, a
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preliminary decree in the suit was passed ex parte on
February’s, 1955. On an application presented on June 11,
1955, final decree was passed on June 23, 1955.
The first application for execution of the decree
presented on August 30, 1955, was dismissed for default on
October 4, 1955, on account of the decree-holder not taking
any steps as a result of the report of the process-server
dated September 14, 1955, stating that the defendant
Kalospshi Banerji had died.
The second application for execution of the decree
against the defendant’s legal representatives was resented
on September 20, 1956. On January 30 1957, the respondents
filed an objection under s. 47 of the Code and on March 1.
1957, they disclosed the date of death of Kalosashi to be
July 20, 1954, by producing a certified copy of the death
register showing the date.
Thereafter, the appellant filed the application for
substitution, on setting aside the abatement. The
respondents opposed this application and the learned
Subordinate Judge, however, held that the appellant had
established that it was prevented by sufficient cause from
continuing the suit and, allowing the application, set aside
the abatement of the suit. The respondents then went up in
revision to the High Court. The High Court disagreed -with
the Subordinate judge and held that the appellant bad
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entirely failed to make out any good cause for the delay in
applying for the setting aside of the abatement and for
applying for substitution much later then the period allowed
by law.
Kalosashi, the defendant, died on July, 20, 1954. The
suit abated on account of the plaintiff having taken no
steps to bring the legal representatives on record within
the period of 90 days as
498
required by Art. 176 of I Schedule to the Limitation Act.
The appellant could have applied for the setting aside of
the abatement within the next 60 days in view of Art. 171.
Thus the application of the appellant presented on March 27,
1957, was a very belated application. The appellant
therefore had to satisfy the Court in two respects. Firstly
it had to satisfy the Court, in order to obtain advantage of
the provisions of s. 5 of the Limitation Act which applies
to applications under r. 9 (2) of O. XXII in view of sub-r.
(3) of r. 9 of that Order, that it had sufficient cause for
not making the application within the period of limitation
prescribed for an application to set aside the abatement of
the suit and, secondly, it had to establish that it was
prevented by any sufficient cause from continuing the suit
by making an application under r. 4 of O. XXII for the legal
representatives of the deceased defendant to be made parties
to the suit within the prescribed period of limitation. To
satisfy the Court in these respects, the appellant had to
show when it learnt that the defendant had died prior to the
passing of the decree, that it was necessary to implead
legal representatives of the deceased in the suit and that
the delay in knowing of this fact and in its applying for
the setting aside of the abatement of the suit was not due
to laches on its part. On these two questions of fact the
findings of the trial Court were in its favour.
It is not necessary for the purpose of this appeal to
state the reasons which were urged as a justifiable excuse
for the inability of the appellant to take the necessary
steps earlier. It is not open to the High Court to question
the findings of fact recorded by a Subordinate Court in the
exercise of its revisional jurisdiction under s. 115 of the
Code which, it is well-settled, applies to cases involving
questions of jurisdiction, i. e. questions regarding the
irregular exercise or non-exercise of jurisdiction or the
illegal assumption of jurisdiction by a Court and is not
499
directed against conclusion of law or fact in which
questions of jurisdiction are not involved : See Bala
Krishna Udayar v. Vasudeva Aiyar (1); M/s A. Batchamian
Sahib and Co. v. A. N. Channiah (2). This legal position is
not disputed for the respondents.
It is however contended for the respondent that a
decision on a question of limitation involves the question
of jurisdiction and in support of this contention reliance
is placed on the case reported as Joy Chand Lal Babu v.
Kamalaksha Chaudhury (3). This case laid down no different
principle of law. What it said in that connection was
quoted with approval in Keshardeo Chamria v. Radha Kissen
Chamria (4) and those observations are :
"There have been a very large number of
decisions of Indian High Courts on section 115
to many of which their Lordships have been
referred. Some of such decisions prompt the
observation that High Courts have riot always
appreciated that although error in a decision
of a subordinate court , does not itself
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involve that the subordinate court has acted
illegally or with material irregularity so as
to justify interference in revision under sub-
section (c), nevertheless, if the erroneous
decision results in the subordinate court
exercising a jurisdiction not vested in it by
law, or failing to exercise a jurisdiction so
vested, a case for revision arises under sub-
section (a) or sub-section (b) and sub-section
(c) can be ignored."
The further observations in that case on which learned
counsel for the respondents mainly relies are :
"The cases of Babu Ram v. Munna Lal (5) and
Hari Bhikaji v. Naro Vishvanath may
be
(1)(1917) L -R. 44 1. A. 261, 267.
(2) C. As 452 and 487/62 decided on
19.10.1962.
(3) (1949) L R 76 I.A. 131,142
(4) (1953) S.C.R. 136,152
(5) (1927) I.L.R. 49 ALL.454
(6) (1885) I.L.R. 9 BOM.432
500
mentioned as cases in which a subordinate
court by its own erroneous decision
(erroneous, that is, in the view of the High
Court), in the one case on a point of
limitation and in the other on a question of
res judicata, invested itself with a
jurisdiction which in law it did not possess
and the High Court held, wrongly their
Lordships think, that it had no power to
interfere in revision to prevent such a
result."
These remarks are not applicable to the facts of the present
case. They apply to cases in which the law definitely ousts
the jurisdiction of the Court to try a certain dispute
between the parties and not to cases in which there is no
such ouster of jurisdiction under the provisions of any law,
but where it is left to the Court itself to determine
certain matters as a result of which determination the Court
has to pass a certain order and may, if necessary, proceed
to decide the dispute between the parties. The distinction
between the two classes of cases is this. In one, the Court
decides a question of law pertaining to jurisdiction. By a
wrong decision it clutches at jurisdiction or refuses to
exercise jurisdiction. In the other, it decides a question
within its jurisdiction. In the present case, the question
whether there was a sufficient cause was exclusively within
the jurisdiction of the Court and the Court could decide it
rightly or wrongly.
Section 3 of the Limitation Act enjoins a Court to
dismiss any suit instituted, appeal preferred and
application made, after the period of limitation prescribed
therefor by the I Schedule irrespective of the fact whether
the opponent had set up the plea of limitation or not. It
is the duty of the Court not to proceed with the application
if it is made beyond the period of limitation prescribed.
The Court had no choice and if in construing the necessary
provision of the Limitation Act or in determining which
501
provision of the Limitation Act applies, the Subordinate
Court comes to an erroneous decision, it is open to the
Court in revision to interfere with that conclusion as that
conclusion led the Court to assume or not to assume the
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jurisdiction to proceed with the determination of that
matter.
Section 5 of the Limitation Act, on the other hand.,
empowers the Court to admit an application, to which its
provisions arc made applicable, even when presented after
the expiry of the specified period of limitation if it is
satisfied that the applicant had sufficient cause for not
presenting it within time. The Court therefore had
jurisdiction to determine whether there was sufficient cause
for the appellants not making the application for the
setting aside of the abatement of the suit in time and, if
so satisfied, to admit it.
Babu Ram’S case (1), referred to in the observations
relied on for the respondent was a case, which according to
the reports, was a case in which the application for setting
aside the ex parte decree passed onDecember 15, 1925,
was made on April 19, 1926,much beyond the period ;of one
month prescribedfor making such applications from the
date of the decree. The question of limitation was simply
ignored by the trial Court which restored the suit. The
High Court held that the mere fact of the appellate Court’s
granting the application for restoration amounted to a
decision in law that the application had been presented
within time and that such a decision, even if wrong, did not
fall under either cl. (a), (b) or (c) of s. 115 C.P.C. It
was this view of the Court which was held by the Privy
Council to be wrong. The case does not relate to the Trial
Court’s finding that there was sufficient cause for not
making the application within the period prescribed.
(1) (1927) 1. L R. 49 AIL 454
502
The other case referred to viz., Hari Bhikaji’s Case
(1). was where the Trial Court had gone wrong on the
question of res judicata. Section II of the Code prohibits
any Court -from trying any suit or issue which would be
covered by the various provisions of that section. There is
no option in the Court to try such a suit in any
circumstance. Similar was the Joy Chand Case (2),in which
the judical Committee had made those observations. In that
case the judgment debtors, in a decree passed in a suit for
the recovery of the amount-of money lent, applied under ss.
30 and 36 of the Bengal Money Lenders Act for relief. The
provisions of the Act applied to suits for recovery of loans
other than commercial loan as defined in that Act. If the
loan to recover which a suit was instituted was a commercial
loan, relief claimed by the judgment debtors could not have
been granted to them as the Act did not apply to commercial
loans and as the Court had no jurisdiction to give the
necessary relief. The trial Court held that the loan in
that suit was a commercial loan and therefore did not come
within the terms of the Act. The High Court disagreed with
that view and held that the loan was not a commerical loan.
The High Court had therefore set aside the order of the
Subordinate judge in the exercise of its revisional
jurisdiction. The judicial Committee considered whether the
High Court was right in doing so and said at p. 142 :
"In so doing, on the assumption that his
decision that the loan was a commercial loan
was erroneous, he refused to exercise a
jurisdiction vested in him by law, and it was
open to the High Court to act in revision
under sub-s. (b) of s. 115."
and thenfollowed the observations already quoted
above. It is clear that on the decision of the
questionthe Subordinate Court had to determine in
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(1) (1885) I.L.R. 9 Boom. 432.
(2) (1949) L.R. 76 I.A. 131, 142,
503
that case depended its very jurisdiction to take action
under that particular Act. It had the jurisdiction to
decide the question, but it could not give jurisdiction to
itself or give up the exercise of its jurisdiction in the
matter on the basis of its finding if that be erroneous.
Neither the facts of that case are comparable to the facts
of the present case nor the observations relied on the
learned counsel for the respondents can be applicable to
this case, as here the Subordinate judge had jurisdiction to
decide both the questions of ’fact viz., whether the
appellant had sufficient cause for not making an application
for setting aside the abatement of the suit within the
period prescribed and therefore had sufficient cause for the
Court’s exercising its discretion in extending the period of
limitation in view of the provisions of s. 5 of the
Limitation Act and also the fact whether the appellant was
prevented from sufficient cause from not making an
application for the substitution of the legal
representatives within the prescribed period of limitation
and thus continuing with the suit. The Court had the
jurisdiction to decide both the questions of fact and also
to proceed with the suit as a result of its decision.
We may refer to two cases relied on for the
respondents. In Dwarka v. Union of India (1), an
application for setting aside an ex parte decree dated
November 30, 1951 was made on January 25, 1952, Though made
after the expiry of the period of limitation, it was held to
be within time on the view that the Court, though open on
January 2, 1952 must be treated as closed as DO substantive
work was transacted on that day. The High Court held that
the trial Court was wrong in its view about the Court being
taken as closed on January 2, and therefore the High Court
interfered in revision. The trial Court misapplied the
provisions of s. 4 of the Limitation Act which allows the
making of an application on the day on which the court
reopens after the day on
(1)(1954) 1, L. R. 33 Pat. 176.
504
which the period of limitation prescribed for making the
application expires and on which day the Court happens to be
closed. The trial Court had gone absolutely against the
provisions of this section in ignoring the fact that the
Court reopened on January 2, and not on January 25, 1952.
The High Court, in coming to its conclusion, relied on the
provisions of s. 3 of the Limitation Act. Section 5 of the
Limitation Act is not applicable to applications for setting
aside ex parte decrees under O.IX, r. 13 of the Code. This
case does not decide that the finding about the Court being
satisfied about the existence of sufficient cause was such a
finding as involved jurisdiction and therefore could be
interfered with by the High Court.
In the case reported as Basantilata v. Amar Nath(1) the
High Court interfered as the Trial Court had misconstrued
and mis-applicd the provisions, of ss. 10 and 11 of the
Indian Soldiers (Litigation) Act 1925 (Act IV of 1925). The
suit was dismissed on December 14, 1942. An application for
the setting aside of the order of dismissal was made on July
15, 1947. The plaintiff, who was a soldier, served under
war conditions from May 23, 1942 to November 25, 1946 when
he was discharged. Thus the total period the plaintiff
served under war conditions was 4 years 6 months and 3 days.
The question was whether this entire period had to be
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excluded in computing the period of limitation for making
the application for setting aside the dismissal of the suit.
The Subordinate Judge excluded it and’ the High Court
considered it unjustifiable to exclude the period prior to
December 14, 1942, the date of the decree, as that period
could not have in any way prevented the plaintiffs in making
the application for the setting aside of the dismissal
order. Here again, the error committed by the Trial Court
was not in coming to a finding of fact in connection with
the provisions
(1) A. 1. R. 1950 Cal. 411.
505
of s. 5 of the Limitation Act which applied to such
applications but on the Court’s deciding the question of
limitation in connection with which sub-s. (2) of s. 10
followed practically the language of s. 3 of the Limitation
Act as it said that no such application would be entertained
unless it was made within a certain time.
We arc therefore of opinion that the High Court fell in
error in interfering with the finding of fact arrived at by
the Subordinate judge with respect to the appellants having
sufficient cause for not making an application for bringing
the respondents on record within time and for not applying
for the setting aside of the abatement within time. We
allow the appeal with costs throughout, set aside the order
of the Court below and restore that of the Trial Court. It
will ’now proceed according to law with the further
execution of the decree on the second application presented
by the appellant for the purpose.
Appeal allowed.
506