Back
High Court Of Calcutta
M.S. Shah, Harish Tandan, JJ.
National Bank Ltd. : Appellant
Versus
Dulal Kanti Chowdhury : Respondent
Original Side G.A. No. 1024 of 2010 A.P.O.T. No. 181 of 2010
Decided On : Apr 30, 2010
ORDER 11 RULE 21 - EXTENSION OF TIME - SECTION 148 - SECTION 151 - ORIGINAL SIDE RULES CHAPTER 38 RULE 46 - SUIT FOR MONEY DECREE - Where the plaintiff was not at fault for not having filed the affidavit of documents within the time limit stipulated in the order of the learned single Judge, the time limit specified in section 148 of the Code Civil Procedure as amended w.e.f. 1st July, 2002 would not apply to the Original Side suit proceedings before this Court. The time limit granted by the trial Court for filing the affidavit of documents is extended up to two weeks from today.
Fact of the Case:
Plaintiff filed a suit for money decree and other consequential reliefs. Defendant No. 2 filed its written statement and made an application seeking directions upon the plaintiff to file an affidavit of documents and in default the suit be dismissed. The learned single Judge passed an order disposing of the application, directing the plaintiff to file the affidavit of documents within four weeks from the date, failing which the suit will stand dismissed for default. The plaintiff made an application for restoration of the suit and for recalling the order dated 8th April, 2008 on the ground that the plaintiff did not know about the said order. The learned single Judge allowed the application and extended the time for filing affidavit of documents till 10th September, 2008. The plaintiff filed another application for recalling the orders dated 8th April and 4th September, 2008 and prayed that fresh direction be issued to the extent that the Court had directed dismissal of the suit for fresh filing of the affidavit of documents within such time and on such terms as the Court may deem just and proper.
Finding of the Court:
The Court held that the trial Court did not lose seisin of the case and, therefore, did not cease to have jurisdiction to entertain the application of the appellant / plaintiff in recalling default clause in the orders dated 8th April and 4th September, 2008. The Court also held that the time limit specified in section 148 of the Code Civil Procedure as amended w.e.f. 1st July, 2002 would not apply to the Original Side suit proceedings before this Court. The Court further held that the time limit granted by the trial Court for filing the affidavit of documents is extended up to two weeks from today.
Issues: 1. Whether the trial Court had jurisdiction to entertain the application of the appellant / plaintiff in recalling default clause in the orders dated 8th April and 4th September, 2008? 2. Whether the time limit specified in section 148 of the Code Civil Procedure as amended w.e.f. 1st July, 2002 would apply to the Original Side suit proceedings before this Court?
Ratio Decidendi: 1. The Court held that the trial Court did not lose seisin of the case and, therefore, did not cease to have jurisdiction to entertain the application of the appellant / plaintiff in recalling default clause in the orders dated 8th April and 4th September, 2008, relying on the decisions in Mahanth Ram Das v. GangaDas, AIR. 1961 SC 882 and Chinnamarkathianv. Ayyavoo, AIR 1982 SC 137. 2. The Court held that the time limit specified in section 148 of the Code Civil Procedure as amended w.e.f. 1st July, 2002 would not apply to the Original Side suit proceedings before this Court, relying on the decision in Iridium India Telecom Ltd. v. Motorola INC. (2005) 2 SCC 145.
Final Decision: The appeal was dismissed and the order of the learned single Judge was affirmed. The time limit granted by the trial Court for filing the affidavit of documents was extended up to two weeks from the date of the judgment.
Mohit S.Shah, CJ.
1. THIS appeal is directed against the judgment dated 1st March, 2010 of the learned single Judge allowing the application for modification of the orders dated 8th April and 4th September, 2008 in Civil Suit No. 217 of 2006.
2. THE suit was filed by respondent No. 1 herein "plaintiff against the present appellant, "appellant" or "defendant No.2" and three other defendants claiming money decree and other consequential reliefs. Defendant No. 2 in the suit (appellant herein) filed its written statement and, on the ground that the plaintiff was not taking any steps in expediting hearing of the suit, defendant No. 2 made application being G.A. No. 990 of 2008 seeking directions upon the plaintiff to file affidavit of documents and in default the suit be dismissed. THE learned single Judge passed order dated 8th April, 2008 disposing of the application in the following terms: This is an application for peremptory order of discovery. THE plaintiff has been served but is not represented. Documents should be discovered within a period of four weeks from date failing which the suit will stand dismissed for default. Inspection will be taken forthwith upon documents being discovered and the parties will take the suit ready for hearing within a period of six weeks from date."
The plaintiff, thereafter, made application being G.A. No. 2839 of 2008 on 12th August, 2001 seeking restoration of the suit and for recalling the order dated 8th April, 2008 on the ground that the plaintiff did not know about the said order. By order dated 4th September, 2008, the learned single Judge allowed the application and extended the time for filing affidavit of documents till 10th September, 2008. Learned single Judge also awarded costs assessed at Rs. 50 GMs. The order read as under:
'The delay in filing the application is condoned. By the order dated April 8th 2008, a direction was given for documents to be discovered within a period of four weeks from that date. The order provided that failing documents being discovered within such time the suit will stand dismissed. The affidavit of documents has been kept prepared by the plaintiff. The order dated April 8, 2008 is modified by extending the time for affidavit of documents to be filed till September 10, 2008. Inspection forthwith thereupon. In the event documents are not disclosed by the extended time, the default clause in the order dated April 8, 2008 will become operative."
3. THE plaintiff, thereafter, filed application being G .A. No. 499 of 2010 through another advocate for recalling the 'orders dated 8th April and 4th September, 2008 and prayed that fresh direction be issued to the extent that the Court had directed dismissal of the suit for fresh filing of the affidavit of documents within such time and on such terms as the Court may deem just and proper. THE plaintiff also prayed for such further order or orders as the Court may deem fit and pro order dated 1st March, 2010 the learned single Judge recalled the orders dated 8th April and 4th September, 2008 insofar as the Court had directed dismissal of the suit upon failure of the plaintiff to file affidavit of documents within the time limits specified earlier and the learned single Judge also directed the plaintiff to file his affidavit of documents within 10 days from the date of receipt of the order upon payment of costs assessed at 100 GMs to the defendant No. 2. Learned single Judge specifically observed that the order was passed as in the event the suit was dismissed, a substantive right of the plaintiff would be lost and all for latches and negligence on the part of its advocate.
4. DEFENDANT No.2 has filed the present appeal for challenging the above judgment and order dated 1st March, 2010 of the learned single Judge. Mr. Sabyasachi Chowdhury, learned counsel for the appellant, has assailed the order mainly on the following grounds:
(i) The plaintiff having failed to comply with the directions contained in the o
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
