1987 Supreme(Bom) 5

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
M.S. Ratnaparkhi, J.
Latadevi (Smt.) w/o Amiya Kumar Bhattacharya.... Applicant.
Versus
... Non-applicants.
Civil Revision Application No. 1187 of 1985, decided on 6-1-1987.
Advocated appeared :
S.A Bobade P.G. Marpakwar, for applicant.
Y.S. Athalye A.D. Vyawahare, for non-applicant No. 1.

Headnote:Order VII Rule 10-B-Limitatiou Act, 1963, Section 14-Scope of Section 14 does not speak of delay but speak only exclusion or time required by proceedings before trial Court-Without completion of mandatory procedure under Rule 10-B or order 7, proceedings not legitimately terminated in real sense or term-Whether time taken in completion or mandatory procedure to be excluded under Section 14.

       Held, that, Section 14 of the Limitation Act enables the Court to exclude only that much time commencing from the institution of the suit till the date of termination of the proceedings before the wrong Court. He urged that the time till 6-2-1984 could be legitimately excluded under Section 14. He was even prepared to say that the time till 12-3-1984 could be legitimately excluded because the parties were called upon to appear on that day. His main grudge was that the time commencing from 12.2-1984 onwards till 18-4-1984 was to be accounted for, positively. It is difficult to accept this argument in view of the discussion in the preceding paragraph. Because the proceedings cannot be said to have terminated as soon as the High Court passed the order on 6-2-1984. On that day there was merely a declaration that the Court of Small Causes at Nagpur has jurisdiction to entertain and decide the suit. However, for return of the plaint, the procedure necessary under Order 7, Rule 10-B was to be complied with and that procedure being mandatory and the plaintiff having no voice in that procedure, these procedure, could not be completed except on taking some steps by the Court itself. From that point of view, the steps which the Court was required to take, were beyond the control of the plaintiff. It was only the Court which could do these things and the plaintiff except for asking the Court to take case on Board could not legitimately do anything in the matter. Without the completion of the mandatory procedure, proceedings could not be held to have been legitimately terminated in the real sense of the term. This itself would explain the whole delay. In fact there is no question of delay. Section 14 of the Limitation Act does not speak of delay, but it speaks only exclusion of time required by the proceedings before the trial Court. The proceedings must held to have been terminated effectively only when the plaint was ready for handing over to the plaintiff for presentation to the proper Court. It was so on 18-4-1984 and admittedly enough it was presented before the proper Court on the very same day without wasting any further time.

       Order VII Rule 10-B - Limitation Act, 1963, Section 14-Whether parties could be expected to comply with directions of court to appear before Civil Judge on a particular date, although mandatory procedures required to be complied with under Rule 10-B of Order 7 for returning the plaint were not completed by court before said date-Exclusion of time for limitation purposes under Section 14.

       The mandatory procedures that were to be complied with by the Court and then examine the consequences of these different actions. As already pointed out, on 12-3-84 the Judge of the Small Causes Court took up the case on Board and declared his intention of returning the plaint for production before the proper Court. At the same time, he directed both the parties to appear before the Civil Judge, (Senior Division.), Nagpur, on 16-4-1984. Obviously, the parties were not expected to go before the Civil Judge, (Senior Division), Nagpur merely as invitees or as casual visitors. There was a purpose for this direction and the purpose was that this plaint which was to be returned by the Court of Small Causes was to be handed over to plaintiff and the plaintiff was to produce or present this plaint before the Civil Judge (Senior Division), Nagpur.

       It was the only purpose of this direction. For complying with this direction, what was necessary for the Court was to keep all the endorsement ready by 16-4-1984 so that plaint could, without any difficulty, be handed over to the party or to his Counsel for further presentation to the proper Court. Mr. Bohde urged before me that there is nothing on record to show that the parties did attend the Court either of the Small Causes or of the Civil Judge, (Senior Division) on 16-4-1984 Let me assume that neither of the parties went before the Court on that day, though there was a direct mandate given by the Court. That does not solve the real problem. That may merely be a non-compliance of the directions given by the Court. The real question that arises is, whether the Court was prepared to hand over the plaint to the plaintiff for presentation to the proper Court on that day. No endorsement is found in the plaint that it was ready for handing over to the plaintiff.

       On the other hand, what is found is the endorsement made on 18-4-1984 by the Judge and the endorsement shows that all the papers and the plaint were handed over to the plaintiff. There is nothing on record to show that these papers were ready for being handed over to the plaintiff on any day in between 16-4-1984 and 18-4-1984. It could have been the legitimate argument had there been any endorsement made by the Court, that the papers were ready even prior to 16-4-1984 but the parties did not come to receive those papers.

       Thus, as the record stands, the parties were directed to appear before Civil Judge, (Senior Division) on 16-4-1984 which means that there was nothing which the parties could do at least till 16-4-1984, and therefore the argument that the plaintiff ought to have shown the acts on his part to show his diligence becomes futile, because there was nothing which the plaintiff could show. The Court had already directed them to come on 16-4-1984 and not before that. There is nothing on record to show that the mandatory procedures required to be complied with under Rule 10-B of Order 7 were completed by the Court before 18th. In view of this there is nothing to show that the plaintiff could have taken any steps in furtherance of the final act, but he has not taken those steps. The question of conduct in these circumstances becomes completely irrelevant as far as the record goes.