CHITTARANJAN DAS Vs. SANHITA DAS

JUDGEMENT

(1.) THE petitioner tenant had filed an application before the learned Munsif under order 9 rule 13 of the Code of Civil Procedure, giving certain explanation for his absence on the date the suit was called on for hearing resulting in an ex parte decree being passed on the 23rd of April, 1974 in the Title Suit No. 182 of 1971. The application under order 9 rule 13 was made on 5. 6. 74 and the same was registered as Misc. Case No. 104 of 1974. Soon after the Misc. Case Ho. 104 of 1974 was filed, the petitioner filed an application under section 151 of the Code of Civil Procedure praying that his application under order 9 rule 13 of the Code of Civil Procedure may also be treated as an application under Section 151 of the Code of Civil Procedure. The learned Munsif passed cryptic order holding that the application having been filed beyond 30 days of passing of exparte decree and hence it was barred by limitation. He also rejected the application made by the petitioner under section 151 of the Code of Civil Procedure for treating the application under Order 9 rule 13 of the Code of Civil Procedure as an application under section 151 of the Code of Civil Procedure. It will be seen however, that this point taken by the learned Advocate far the petitioner before the learned Munsif was that his application under order 9 rule 13 of the Code of Civil Procedure was with -in time having been filed within 30 days from date of knowledge of the exparte decree passed by the learned Munsif. Thereafter, the petitioner went up in appeal against the order rejecting his application under order 9 rule 13 of the Code of Civil I Procedure and in appeal also he took the same plea that his application was within time upon interpretation of Article 23 of the Limitation Act. The learned Judge dismissed the appeal of the petitioner. Against the said order of dismissal passed by the learned Subordinate Juge the petitioner has moved this Court Under Section 115 of the Code of Civil Procedure.

(2.) MR. Satyendra Prasad Sen, appearing for the petitioner has drawn my attention to the application filed by the petitioner' before the learned Munsif wherein he gave an explanation for not appearing on the date fixed for hearing of the suit. He also gave an explanation as to why the delay was caused in filing the application under order 9 rule 13 of the Code of Civil Procedure. That would appear from paragraph 5 of his application under order 9 rule 13 of the Code of Civil Procedure. It was stated on behalf of the petitioner that the petitioner being aggrieved by an order dated 5. 7. 72 under sees. 17 (2) and 17 (2) (a) (b) of the West Bengal Premises Tenancy Act moved the Hon'ble High Court and obtained a Rule being C. R. No. 3758 of 1972 and got a stay of all proceedings in Title Suit No. 182 of 1971. The petitioner further stated that the Rule was discharged in C. R. 3758 of 1972 but he was not informed about this by his learned Advocate of the High Court. He was not even informed about the date of posting of title suit for hearing. Unfortunately for the petitioner on account of his ill health and other personal difficulties he could not contact his learned Advocate who was conducting his case in the High Court to get the necessary information. But when he recovered he contacted his learned Advocate in the High Court on the 31st of May, 1974 and came to learn for the first time that his revisional application being C. R. 3758 of 1972 was disposed of and he was asked to make enquiries about his case in the lower court. He made enquiries on 1. 6. 74 in respect of Title Suit No. 182 of 1972 and came to learn for the first time that the suit was decreed exparte on 23. 4. 74. The petitioner pleaded that Since he had no knowledge of discharge of the Rule in the High Court, he could not instruct his learned Advocate in the Trial Court to take steps in Title Suit No. 182 of 1972 until 1. 6. 74. That is the reason for his non-appearance on 23. 4. 74 and for the delay in filing the application under order 9 rule 13. The same grounds were taken before the learned lower appellate court. But at the time of hearing of the appeal it was urged on behalf of the appellant/petitioner that his application under order 9 rule 13 of the Code of Civil Procedure was not out of time on interpretation of Article 123 of the Limitation Act. The learned lower appellate court rejected the contention of the petitioner and found that the application under order 9 rule 13 having been filed on 5. 6. 74. It is clearly beyond time and hence dismissed the appeal of the petitioner.

(3.) MR. Sen, the learned Advocate appearing for the petitioner in this Rule has contended that although the petitioner did not make an application under section 5 of the Limitation Act praying for condonation of delay in filling the application under order 9 rule 13 of the Code of Civil Procedure, the materials on record show that there were reasons for the petitioner for coming to court so late. He has given an explanation for the delay so coming to court and it was incumbent upon the learned Munsif as well as the learned lower appellate court to consider his application for the delay though there was no such prayer not even an omnibus prayer for condoning the delay. In this connection Mr. Sen has relied on a decision of the Punjab High Court reported in AIR 1959 Punjab 646. (Firm Kaura Mai Bishan Dass vs. Firm Mathra Dass Atma Ram, Ahamedabad.) The relevant passage is at page 648, paragraph 10. He relied upon the following observation of the learned Judge :