Point of Law: Limitation - Scope of an appeal and a review application - Trial Court acted well within its jurisdiction in rejecting application filed by petitioner for condonation of delay of 1380 days in filing review. Hence, there is no scope of interference with impugned order.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The revisionist-petitioner instituted a suit, bearing Money Suit No. 1 of 2003, in the Eighth Court of Civil Judge (Senior Division) at Alipore, District South 24-Parganas, which was dismissed by the judgment and decree dated April 26, 2012, primarily on the ground of non-production of the documents on which the plaintiff relied.

2. The plaintiff preferred a first appeal, bearing FAT No. 386 of 2012, in this Court against such dismissal.

3. There was a deficit in the court fees deposited by the plaintiffs/appellants/petitioner in FAT No. 386 of 2012. Accordingly, the petitioner filed an application, bearing CAN 2243 of 2012, for furnishing security in place of deficit court fees, which was dismissed ex-parte on September 9, 2013 by a Division Bench of this Court, which further directed the petitioner to deposit the deficit court fees within one week from that date; in default, the first appeal was to stand dismissed automatically.

4. The petitioner, however, failed to deposit such deficit court fees within the stipulated period but filed CAN No. 10376 of 2013 for recall of the order dated September 9, 2013, which remained pending.

5. Thus, by operation of the Division Bench operation dated September 9, 2013, the first appeal stood dismissed automatically.

6. Another application, bearing CAN No. 4617 of 2016, was subsequently filed by the petitioner for non-prosecution of FAT No. 386 of 2012 with liberty to file a review application. CAN No. 14617 of 2016, however, was dismissed by another Division Bench on June 23, 2016, since it was not maintainable in view of the appeal itself having already been dismissed in view of non-deposit of deficit court fees pursuant to the order dated September 9, 2013.

7. On July 1, 2016, the petitioner took out an application for review of the original decree dated April 26, 2012, whereby Money Suit No. 1 of 2003 had been dismissed by the trial court. In the said application for review, the petitioner took the ground that photocopies of the documents relied on by the petitioner in the suit had been traced out subsequently and ought to be accepted as secondary evidence under Section 65 of the Indian Evidence Act, 1872.

8. In the meantime, a writ petition bearing W.P. No. 31667 (W) of 2013 was preferred by the petitioner for compensation against the police authorities for the latter’s alleged failure to hand over the originals of the documents lying with such authorities in connection with a proceeding under Section 138 of the Negotiable Instruments Act, which allegedly resulted in loss being suffered by the petitioner, inter-alia for dismissal of the petitioner’s suit.

9. Vide order dated June 26, 2018, a co-ordinate Bench of this court disposed of the writ petition, recording that, since the State was making over photocopies of the documents seized by the police authorities on the date of that order, that is June 26, 2018, and since the State certified them to be the exact photocopies of the documents seized, it would be open to the petitioner to produce such documents before the appropriate authority, in accordance with law. It was further held by the learned Single Judge that as the petitioner, in law, was then in a position to lead secondary evidence in support of his claim before the adjudicating authorities, the claim for compensation need not be assessed at that stage.

10. Meanwhile, a review application under Order XLVII Rule 1, read with Section 114 of the Code of Civil Procedure, bearing Miscellaneous Case No. 08 of 2016, was filed by the petitioner after about 1380 days’ delay, due to which the same was accompanied by an application under Section 5, read with Section 14, of the Limitation Act, 1963. By the impugned order dated June 15, 2019, the said application under Section 5, read with Section 14, of the Limitation Act was rejected on contest and the review application was also dismissed accordingly.

11. Upon hearing learned counsel for both sides, this