Back
1949 Supreme(Cal) 269
CALCUTTA HIGH COURT
P.B. Mukharji, J.
Debendra Nath Dutt - Appellant
Versus
Sm. Satyabala Dasi & Ors. - Respondent
Suit No. 1865 of 1946
Decided On : 21-09-1949
P.P. Ghosh, for the Appellant; S. Sinha, for the Respondent
The main legal point established in the judgment is that applications for restoration of suits must be made within the prescribed limitation period, as provided under Article 163 of the Limitation Act. Additionally, the judgment reaffirms the specific limitation period for review of judgments of the original side of the Court.
Headnote:
Limitation - Application for Restoration of Suit - Order 9, Rule 8 and Rule 9 of the Code - Article 163, Limitation Act
Fact of the Case:
The plaintiff filed a suit for recovery of a sum of money, which was dismissed for default on 5th May 1949. The plaintiff subsequently applied to set aside the dismissal, arguing that they were not aware of the dismissal until 11th August 1949.
Finding of the Court:
The court found that the application to set aside the dismissal was barred by limitation under Article 163 of the Limitation Act, as it was not made within 30 days from the date of dismissal. The court also rejected the argument that the application could be treated as a review under Order 47 Rule 1 of the Code, as it would still be barred by the 20-day limitation period for review of judgments of the original side of the Court.
Issues: The main issue was whether the application to set aside the dismissal of the suit was barred by limitation under Article 163 of the Limitation Act.
Ratio Decidendi: The court held that the application was indeed barred by limitation, as it was not made within 30 days from the date of dismissal. The court also rejected the argument for treating the application as a review, as it would still be barred by the 20-day limitation period for review of judgments of the original side of the Court.
Final Decision: The application for restoration of the suit was dismissed with costs.
JUDGMENT
P.B. Mukharji, J. - This is an application made by a notice of motion. The notice of motion is taken out by the attorney for the plaintiff and is dated 19th August 1949. By special leave the notice of motion was made returnable for 22nd August 1949, The notice of motion asks for the following reliefs :
"1. Order getting aside the order of dismissal dated 5th May 1949.
2. Restoration of the suit for hearing.
3. If necessary, extension of time for making this application."
2. On the day when special leave was asked from the Court to make the notice of motion returnable on 22nd August 1949 the application was not noted as made on that date when the application came on the list on22nd August 1949 the plaintiff did not have the application noted as made even on that date. On 22nd August 1949 directions were obtained from this Court for filing affidavits. Time was taken to file affidavit in opposition by Tuesday week i. e., 30th August 1949 and to file affidavit in reply by the following Monday, i. e., 5th September 1949 and the application remained adjourned for hearing till 6th September 1949 when adjournment was asked, for and granted till the following Tuesday i. e. 13th September 1949. Even on 6th September when the motion was on the list the applicant did not have the motion noted as made on that date. When the motion appeared on the list on 13th September, it was again adjourned at the instance of the parties till the following Friday, 16th September 1949. The application was heard on 16th September 1949. I have stated in detail the career of this motion because an important point of limitation has been raised in defence to this application.
3. The facts giving rise to this application may be stated briefly.
4. This is a liquidated claim and the suit was instituted by the plaintiff on 1st December 1946. Plaintiff claimed in the suit the recovery of the sum of Rs. 2,570-1-6 alleged to be due on a hatchita. The hatchita was executed by the father of defendant 1 Kartick Chandra Nayak Saha as early as 9th January 1938. The drawer of the promissory note died in June 1946. The plaintiff filed the suit against the widow and the other minor sons of the deceased drawer. The suit appeared in the prospective list from 11th March 1948 and continued in the Prosective List for over a year till 30th April 1949. Under Chap. 10, Rule 7 of the Original Side Rules of this Court a suit is placed on the prospective list when it is ready to be heard, which, in my opinion, means when inspection, discovery and translation of documents have all been completed.
5. On 4th May 1949, the suit appeared in the warning list of liquidated claims of Sinha J. On 5th May 1949, the suit appeared in my daily list of liquidated claims for disposal. It was called on twice. On the first call no one appeared for the plaintiff when it was passed over. On the second call also, nobody appeared for the plaintiff. On both these occasions defendant 1 and his counsel were present. On the second call when no one appeared Mr. S. Sinha learned advocate for defendant 1 asked for the dismissal of the suit. The suit was accordingly dismissed and I consider the provision of Order 9, Rule 8, Civil P. C., to be mandatory.
6. On behalf of the plaintiff, this application is now made to set aside that order of dismissal which was made on 5th May 1949. In support of the notice of motion the only ground used is an affidavit of one Kanai Lal Chatterjee affirmed on 19th August 1949. The said Kanailal Chatterjee is a court clerk of the attorney for the plaintiff. The case made in his said affidavit may be summarised as follows :
(i) He did not know that the suit had been dismissed for default on 5th May 1949. The Court closed for the summer holidays after 14th Hay 1949 and re-opened on 15th June 1949.
(ii) Between 4th May 1949 when he saw the suit appearing on the warning list of Sinha J. and until 14th May 1949 when the Court closed for the summer holidays apparently no interest was taken in
