KRISHNA KUMAR KHEMKA Vs. JAGADISH NARAYANA BHAN

JUDGEMENT

(1.) This is an application for condonation of the delay in making an application for review under Order 47 of the Civil Procedure Code, and for an order that the memorandum of Review presented to the Registrar on September 29. 1970, but returned by him, with the endorsement "out of time", be admitted. Before proceeding any further I should note that this is a third of a series of attempts to reopen an order made by consent of parties and on the basis of terms of settlement put in by them on July 9. 1970. The object of the review application is to obtain variation and alteration in the terms agreed upon between the parties by increasing the price of the shares in the capital of a Joint Stock Company known as Associated Industrial Development Co. Private Ltd. The circumstances in which the first application was made by the petitioner has been set out in paragraph 48 of the petition. That application was made on September 15, 1970, and was disposed of on September 28. 1970. The application was dismissed on the ground of non-compliance with the provisions in Order 47. Rule 3 of the Civil Procedure Code and Rules 34, 35 and 36 of Chapter XXXI of the Original Side Rules of this Court, as no memorandum of review was presented by the applicant for the purpose of the application. Counsel for the applicant had asked for leave to withdraw the application with liberty to make a fresh one, in proper form. But this prayer was rejected as we took the view that the application was barred by limitation under Article 124 of the Limitation Act. 1963. It is to be noted here that in that application there was no prayer for condonation of delay in filing the application or for enlargement of the time to present a memorandum of appeal to the Registrar as required by the Rules of this Court mentioned above. To the order dated September 28, 1970. I shall have occasion to refer later in this judgment.

(2.) On September 29. 1970. the petitioner presented a Memorandum of Review to the Registrar, Original - Side of this Court under Rule 36 of Chapter XXXI of the Original Side Rules of this Court. This Memorandum of Review was returned on the ground that it was out of time. I set out below the dates noted by the Registrar in rejecting the Memorandum of Review. <frm> Order passed on 9-7-70 Requisition for order 13-7-70 Requisition for certified copy 31-8-70 Order filed on . . . 21-8-70 Folios marked on . . . 7-9-70 Stamp furnished on 7-9-70 Certified copy ready on . . . 12-9-70 Memorandum of Review filed on ... 29-9-70 </frm> Quite apart from other grounds, to which I shall refer later, and on which we find that such an application is incompetent, it appears that the Original Side Rules do not provide for such an application. Rule 34 of Chapter XXXI of those Rules provides that Rules 2 and 3 of that Chapter shall so far as applicable, apply, mutatis mutandis to application for review. Rule 2 deals with the form of the Memorandum of Appeal from the Original Side and prescribes that it shall bo . in Form No. 1 and shall be drawn up in the manner prescribed by Order 41. Rule 1 of the Code. Rule 3 provides for acceptance of the memorandum by the Registrar, if it is duly stamped, and is within the time allowed by the law of limitation. Rule 4 of those Rules provides that when a Memorandum of Appeal is not accepted by the Registrar, he shall endorse thereon the date of its presentation, and return it to the party or attorney by whom it was tendered, and such memorandum may then be presented to the appellate Court for admission. It is to be noticed that Rule 4 has not been made applicable to a Memorandum of Review. That being so a litigant whose Memorandum of Review has been rejected by the Registrar has no right under the Rules to present the same to this Court for admission, as in the case of a Memorandum of Appeal. There is no other provision in the Original Side Rules to enable the petitioner in this application to move this Court for admission of the Memorandum of Review which has been rejected and returned by the Registrar.

(3.) If the question was to be decided only on the basis of the Original Side Rules alone it might be contended with a good deal of force that such an application was not maintainable. The question, however, has to be examined in the light of the provisions of Section 5 of the Limitation Act, 1963. That section provides that any appeal or any application other than an application under Order 21 of the Civil Procedure Code, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such, period. The petitioner in this case therefore has a riaht under Section 5 of the Limitation Act to move this Court for admission of the application after the prescribed period, if he can satisfy the Court that there was sufficient cause for not making the application within the period of limitation. Section 5 of the Limitation Act therefore confers upon the petitioner the right to move this Court for admission of the Memorandum of Review, provided of course he can satisfy this Court that there was sufficient cause for not making the application within the period of limitation. In our view Section 5 of the Limitation Act, and the Original Side Rules of this Court have to be read together, and if under the provision of the one, though not of the other, the petitioner has the right to apply for condonation of delay, and for admission of the Memorandum of Review, this right ought not to be denied to him. In that view of the matter we are of the opinion that although the Original Side Rules do not provide for such an application, the petitioner is entitled to move this Court under Section 5 of the Limitation Act. But although the petition itself is maintainable under Section 5 of the Limitation Act, the question that we have to consider is whether having regard to the events which have happened the petitioner is entitled to an order admitting the Memorandum of Review.