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HIGH COURT OF CALCUTTA
Santosh Kumar Chakravarti
HEMANTA KUMAR DEY - Appellant
Versus
TARAMANI DEVI TIBRIWALLA - Respondent
Civil Rule 2556 Of 1971
Decided On : FEBRUARY 09, 1971
Limitation - Application under Order 21, Rule 100 of the Code of Civil Procedure - The court held that the application for possession of premises must be filed within thirty days from the date of dispossession, and the provisions of Section 5 of the Limitation Act, 1963, do not apply to the provisions of Order 21 of the Code of Civil Procedure. The court set aside the lower court's order and dismissed the application as time-barred.
Fact of the Case:
The opposite party was dispossessed from the premises on 25th May 1968 and filed an application under Order 21, Rule 100 of the Code of Civil Procedure on 2nd August 1968, claiming that she came to know about the dispossession only ten days before the filing.
Finding of the Court:
The court found that the application was time-barred as it was filed much beyond thirty days from the date of dispossession. The court held that Section 5 of the Limitation Act, 1963, does not apply to the provisions of Order 21 of the Code of Civil Procedure.
Issues: The main issue was whether the application under Order 21, Rule 100 was filed within the prescribed time limit from the date of dispossession.
Ratio Decidendi: The court's decision was based on the interpretation of the time limit for filing the application under Order 21, Rule 100 and the applicability of Section 5 of the Limitation Act, 1963.
Final Decision: The court set aside the lower court's order and dismissed the application under Order 21, Rule 100 of the Code of Civil Procedure as time-barred, allowing the opposite party to file a suit under Order 21, Rule 103 if advised.
( 1 ) AN application under Order 21, Rule 100 of the Code of Civil Procedure had been filed by the opposite party No 1 on the 2nd August, 1968 and the allegations are that she was dispossessed from the premises in question on the 25th May 1968 but she came to know about it only ten days before the 2nd of August, 1968, as she was at Kathamandu. The decree-holder, who is the petitioner before me, contended that the application was time barred not having been filed within thirty days from the date of dispossession and prayed to the Court that this point may be taken up at a preliminary hearing of the issues. The court below did not accede to that prayer, even allowed the prayer of the opposite party No. 1 to be examined on commission and then wanted to take down the evidence on all the points end then dispose of the point of limitation also along with the other issues. The decree holder has come up against that order in this rule.
( 2 ) IT is clear that such an application has to be filed within thirty days from the date of dispossession, and here the date of dispossession, is the 25th May. 1968, and the application has been filed much beyond thirty days from that date. Section 5 of the Limitation Act, 1963, would show that it would not apply to any of the provisions of Order 21 of the Code of Civil Procedure. In the circumstances, it was not necessary for the learned Munsif to go into other questions or to take down any evidence at all and he should have dismissed the miscellaneous case at once as time barred.
( 3 ) THIS Rule therefore succeeds and is made absolute, the order passed by the learned Munsif is set aside and the application under Order 21. Rule 100 of the Code of Civil Procedure is dismissed without costs as time barred. The opposite party No. 1 may file a suit under Order 21. Rule 103 of the Code, if so advised, if it lies.
( 4 ) EACH party will bear its own costs in this Court. Let the records go down as quickly as possible.
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