Back
IN THE HIGH COURT AT CALCUTTA
Hiranmay Bhattacharyya, J.
Smt. Archana Maji & Ors. - Appellant
Vs.
Sri Bhim Prasad Manna & Ors. - Respondent
CO 3471 of 2023
Decided On : 03-04-2024
Delay Condonation - Civil Procedure Code - Order VII Rule 11(d), Section 148 - The court discussed the provisions of Order VII Rule 11(d) of the Civil Procedure Code and Section 148, and their applicability in condoning the delay in presenting the plaint. The court also referred to the Limitation Act, 1963 and relevant case laws to interpret the scope of these provisions and concluded that the court has the power to enlarge the period fixed by the court for presenting the plaint even beyond 30 days in accordance with Section 148 of the Code.
Fact of the Case:
The plaintiff filed a Title Suit, and the plaint was returned with a direction to present it before the appropriate court within one month. The plaintiff filed an application for condonation of delay, which was allowed by the trial judge. The defendants, aggrieved by the decision, approached the court.
Finding of the Court:
The court held that the trial judge exceeded its jurisdiction in condoning the delay/enlarging the period fixed by the court that directed the return of the plaint. The impugned order allowing the condonation of delay was set aside, and the plaintiff was given the option to approach the appropriate court for enlargement of time under Section 148 of the Code of Civil Procedure.
Issues: The primary issue was whether the time limit fixed by the court for presenting the plaint before the proper forum can be extended. Another issue was whether the court before whom the plaint was presented after its return had the jurisdiction to enlarge the period fixed by the court that directed the return of the plaint.
Ratio Decidendi: The court interpreted the provisions of Section 148 of the Code of Civil Procedure and discussed relevant case laws to conclude that the court has the power to enlarge the period fixed by the court for presenting the plaint even beyond 30 days. The court also clarified that no other court is vested with the jurisdiction to enlarge the time limit under Section 148 of the Code.
Final Decision: The impugned order allowing the condonation of delay was set aside, and the plaintiff was given the option to approach the appropriate court for enlargement of time under Section 148 of the Code of Civil Procedure. The revisional application was disposed of with no order as to costs.
JUDGMENT :
Hiranmay Bhattacharyya, J.
1. This application under Article 227 of the Constitution of India is at the instance of the defendant nos.1(ka), 1(kha) and 1 (ga) and is directed against an order being No.9 dated July 5, 2023 passed by the learned Civil Judge (Senior Division), 1st Court, Tamluk, District-Purba Medinipur in OS No.11 of 2022.
2. By the order impugned, the application under Order VII Rule 11(d) of the Code of Civil Procedure, at the instance of the petitioners, stood rejected. By the later portion of the said order, the petition dated 1st August, 2022 filed by the plaintiff/opposite party herein stood allowed.
3. The opposite party herein instituted a Title Suit being No.2 of 2012 before the Court of the learned Civil Judge (Junior Division), Additional Court, Tamluk. The plaint of the said suit was returned to the plaintiff/opposite party herein with a direction to present the same to the court in which the suit should have been instituted within one month from the date of the Order No.180 dated May 30, 2022. Thereafter, the plaint of the instant suit being OS No.11 of 2022 was filed before the Court of the learned Civil Judge (Senior Division), 1st Court, Tamluk, District-Purba Medinipur on 1st August, 2022.
4. The plaintiff claims that the plaint was returned to him on 27th July, 2022 and due to his illness the plaint could not be presented within the time limit indicated in the order dated 30th May, 2022.
5. The plaintiff, accordingly, filed an application praying for condonation of delay in presenting the plaint of the instant suit beyond the stipulated time limit. Such application appears to have been filed on 1st August, 2022. Subsequently the defendant nos.1(ka) to 1 (ga) filed an application under Order VII Rule 11(d) of the Code of Civil Procedure praying for rejecting of plaint. Such application appears to have been filed on 17th January, 2023.
6. The learned Trial Judge rejected the application under Order VII Rule 11(d) of the Code of Civil Procedure upon holding that it does not appear from the statement in the plaint that the suit is barred by any law. The learned Trial Judge further observed that noncompliance of the order of the learned Civil Judge (Junior Division), Additional Court, Tamluk and filing/presenting the plaint before that court after the expiry of one month does not attract the provisions of Order VII Rule 11(d) of the Code of Civil Procedure.
7. On the petition dated 1st August, 2022 filed by the plaintiff/opposite party herein the learned Trial Judge was of the view that the prayer of the plaintiff for condonation of delay should be allowed for substantive justice and for the ends of justice with cost of Rs.1,000/-.
8. Being aggrieved, the defendant nos.1 series have approached this court.
9. Mr. Thakur, learned Advocate appearing for the petitioners submits that the presentation of plaint after the same is returned, amounts to a fresh suit being instituted and, therefore, the delay, if any, in presentation of the plaint cannot be condoned by the court under Section 5 of the Limitation Act. He further submits that the plaint does not contain any averment in the manner required under Section 14 of the Limitation Act, 1963 and, therefore, the period beyond the time limit specified in the order returning the plaint cannot be also excluded in terms of the provisions laid down under Section 14 of the said Act. In support of the aforesaid contentions he placed reliance upon the decisions of the Hon’ble Supreme Court in the case of ONGC Ltd. v. M/s. Modern Construction and Co. reported at AIR 2014 SC 83, Hanamanthappa and Another v. Chandrashekharappa and Others reported at (1997) 9 SCC 688 and Ketan V. Parekh v. Special Director, Directorate of Enforcement and Anr. reported at AIR 2012 SC 683.
10. Per contra, Mr. Mukherjee, learned advocate appearing for the plaintiff/opposite party submits that the court in exercise of its powers under Section 148 of the Code of Civil Procedure can enlarg
AI
The court established that it has the power to enlarge the period fixed by the court for presenting the plaint even beyond 30 days in accordance with Section 148 of the Code of Civil Procedure.
The court held that the issue of limitation for rejection of plaints is a mixed question of law and fact, necessitating evidence rather than being resolved at the preliminary stage.
The Court held that the trial Court had no jurisdiction to extend time under Section 148 of the Civil Procedure Code after the automatic order became operative.
Diligence and urgency are crucial in pursuing legal remedies, and the absence of satisfactory explanation and good faith may lead to the dismissal of an application for condonation of delay.
Exclusion of time under Section 14 of the Limitation Act applies only when court processes are duly followed; failure to complete mandated procedures affects diligence.
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
