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2000 Supreme(Cal) 144
High Court Of Calcutta
GORACHAND DE
JAHAR DEY - Appellant
Versus
SMT.BROJESHWARI SAHA - Respondent
C. O. 2647 Of 1999
Decided On : 03/23/2000
SABYASACHI BHATTACHARJI
A court cannot exercise jurisdiction not vested in it, and consent cannot confer jurisdiction where it is inherently lacking.
Headnote:
ORDER 9 RULE 13 CPC - SECTION 5 LIMITATION ACT - ORDER PASSED WITHOUT JURISDICTION - APPEAL - REVISION - JURISDICTION - CONSENT - LACK OF JURISDICTION - CURE BY CONSENT - INHERENT JURISDICTION - TERRITORIAL OR PECUNIARY JURISDICTION - COURT CANNOT EXERCISE JURISDICTION NOT VESTED IN IT - ORDER PASSED IN A MATTER IN WHICH COURT HAD NO JURISDICTION - TO BE SET ASIDE - DELAY CAUSED BY PETITIONER - COST AWARDED AGAINST HIM.
Fact of the Case:
Defendant-petitioner filed an application under Order 9, Rule 13, CPC, alleging that he was not properly informed of the date of hearing by his advocate and had sufficient cause for non-appearance. A separate application under Section 5 of the Limitation Act was filed after two days, praying for condonation of delay. The trial court rejected both applications, finding that the petitioner failed to explain the delay. The petitioner filed a revision case, which was withdrawn, and a Misc. Appeal was filed with a delay of 338 days, which was condoned. The Misc. Appeal was dismissed, confirming the trial court's order.
Finding of the Court:
The trial court had no jurisdiction to dispose of the application under Order 9, Rule 13, CPC, without disposing of the application under Section 5 of the Limitation Act. The First Appellate Court also erred in confirming the dismissal of the application under Order 9, Rule 13, CPC, on merits. The impugned order and the trial court's order dismissing the Misc. case are liable to be set aside.
Issues: 1. Whether the trial court had jurisdiction to dispose of the application under Order 9, Rule 13, CPC, without disposing of the application under Section 5 of the Limitation Act? 2. Whether the First Appellate Court erred in confirming the dismissal of the application under Order 9, Rule 13, CPC, on merits? 3. Whether the impugned order and the trial court's order dismissing the Misc. case are liable to be set aside?
Ratio Decidendi: 1. The trial court lacked jurisdiction to dispose of the application under Order 9, Rule 13, CPC, without first disposing of the application under Section 5 of the Limitation Act. 2. The First Appellate Court erred in exercising a jurisdiction not vested in it by confirming the dismissal of the application under Order 9, Rule 13, CPC, on merits. 3. The impugned order and the trial court's order dismissing the Misc. case are liable to be set aside as they were passed in a matter in which the courts had no jurisdiction.
Final Decision: The impugned order and the trial court's order dismissing the Misc. case are set aside. The trial court is directed to dispose of the application under Section 5 of the Limitation Act first on merits and then make further orders on the application under Order 9, Rule 13, CPC, in accordance with law. The petitioner is awarded a cost of Rs. 2,000/- against him payable to the plaintiff opposite parties in the trial court.
( 1 ) THIS revisional application is directed against the Order dated 9-9- 1999 passed by Shri S. K. Prasad, Civil Judge (Senior Division), ninth Court, Alipore in Misc. Appeal No. 148 of 1997. By the said order the learned Judge dismissed the Misc. Appeal and confirmed the Order No. 55 dated 17-7-1993 passed in Title Suit No. 394 of 1985 of the Court of Second Munsif at Alipore.
( 2 ) THE plaintiff opposite party instituted a suit for eviction of the present petitioner from the suit property mainly on the ground of default in payment of monthly rent since Sept. 1984. The defendant petitioner entered appearance and filed application under Sections 17 (1) and 17 (2) of the West Bengal Premises Tenancy Act. On 21-3-1989 the suit was heard ex parte and decreed in favour of the plaintiff. In 15-9-1990 the defendant petitioner filed an application under Order 9, Rule 13 of the Code of Civil Procedure alleging inter alia, that he was not properly informed of the date of hearing by his learned advocate and accordingly, he explained that he had sufficient cause for non appearance when the suit was called on for hearing. It was also pointed out that he was not a defaulter in payment of rent as the rent was regularly tendered to the Office of the Rent Controller, Calcutta. A separate application under Section 5 of the Limitation Act was filed after two days of presentation of the application under Order 9, Rule 13 of the Code praying for condonation of delay. The trial Court by Order No. 59 dated 17-7-1993 took up both the applications under Order 9, Rule 13 of the Civil Procedure Code and Section 5 of the Limitation Act for hearing and rejected both the application on contest by a single order with the finding that the defendant petitioner failed to explain the delay as mentioned in the application under Order 9, Rule 13 of the Civil Procedure Code and also under Section 5 of the Limitation Act.
( 3 ) ). Against the said Order No. 59 dated 17-7-1993, the defendant petitioner initially filed Civil Revision Case No. 224 of 1993 before the District Judge , Alipore and it was admitted for hearing. In course of hearing of that revisional application before the Second Court of Additional District Judge, Alipore it was detected that Order No. 59 dated 17-7-1993 was an appealable order and ultimately keeping in view the submissions made by the learned advocates of rival parties, the order was passed on 12-3-1997 allowing the withdrawal of the civil revisional application with liberty to file proper proceeding against the said order. Subsequently, Misc. Appeal No. 148 of 1997 was filed with a delay of 338 days and that delay was condoned and the Misc. Appeal was taken up for hearing. Thereafter the impugned order was passed dismissing the Misc. Appeal with the finding that the defendant petitioner failed to prove sufficient cause of his non appearance when the suit was called on for ex parte hearing.
( 4 ) AT the time of hearing of this revisional application, the learned counsel for the defendant petitioner practically challenged the said order of the appellate Court mainly on the ground that the order was passed exercising a jurisdiction which was not vested in that Court by law. It was explained by the learned counsel that the Order No. 59 dated 17-7-1993 was merely an order rejecting an application under Section 5 of the Limitation Act and the trial Court had no jurisdiction to dispose of the application under Order 9, Rule 13 of the Civil Procedure Code on merits without allowing the application under Section 5 of the Limitation Act. Actually keeping in view that the said Order No. 59 dated 17-7-1993 was an order rejectingan application under Section 5 of the Limitation Act, a revisional case was actually filed and due to ill advice of the learned counsel, it was withdrawn and a Misc. Appeal was filed with the leave of the First Appellate Court. It is further contended that the First Appellate Court should have consider
