Manindra Land and Building Corporation
Ltd. Vs. Bhutnath Banerjee & Ors  INSC 129 (2 May 1963)
02/05/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
CITATION: 1964 AIR 1336 1964 SCR (3) 495
RF 1964 SC1341 (16) F 1966 SC 153 (12) R 1966
SC 439 (4) R 1972 SC2379 (9) RF 1978 SC1341 (10)
Substitution-Application beyond time for
setting aside abatement-Lower Court's order set aside by High Court in
revision-Propriety-Power of High Court in revision-Code of Civil Procedure,
1908 (Act V of 1908), s. 115, O. XXII. rr. 4, 9 (2),(3)-Indian Limitation Act,
1908 (Act 9 of 1908), ss. 3,4,5 Arts. 171,176.
The appellant made an application beyond time
for substitution, on setting aside the abatement of the suit he had filed
against the father of the respondents. The Subordinate judge held that the
appellant was prevented by sufficient cause from continuing the suit and
allowed the application. The High Court in revision, disagreed with the
Subordinate judge and held that the appellant had entirely failed to make out
any good cause for applying much later than the period allowed by law.
Held that it was not open to the High Court
to question the findings of fact recorded by a subordinate court In exercise of
its revisional jurisdiction under s. 115 Code of Civil Procedure, which, it is
well settled, applies to cases involving questions of jurisdiction.
Balakrihna Udayar v. Vasudeva Aiyar, (1917)
L.R. 44 I.A. 261, M/s. A. Batchamian Saheb and Co. v. A. N. Channiah G.A. Nos.
452 and 487/62 decided on 19.10.62, joy Chand Lal Babu v. Kamalaksha Chaudhury,
(1949) L.R.76 I.A. 131 and Deshardeo Ohamria v. Radha Kisses Chamria 
S.C.R. 136, referred to.
If in construing the necessary provisions of
the Limitation Act or in determining which provision of the Act applies, the
Subordinate Court comes to an erroneous decision, it is open to the Court ill
revision to interfere with that conclusion.
496 Held further, that the Subordinate Court
had exclusive jurisdiction to decide both the questions of fact, viz., whether
the appellant had sufficient cause for not making an application for setting
aside the abatement. within the time prescribed and whether the appellant was
prevented from sufficient cause from not making an application for the
substitution of thelegal representatives within the prescribed time.
Babu Rain v. Munna Lal (1927) I.L.R. 49 All.
454, Hars Bhikaji v . Naro Vishvanath (1885) I.T ..R. 9 Bom. 432, Dwarka v.
Union of India, (1954) I.T.R. 33 Pat. 176 and Basantilata v. Amar Nath, A.I.R.
(1950) Cal. 41 1, distinguished.
CIVIL APPELLATLE JURISDICTION : Civil Appeal
Appeal by special leave from the judgment and
order dated July 24, 1958 of the Calcutta High of 1958. Court in Civil Revision
No. 748 of 1958 N. C. Chatterjee, E. Udayaratnam and D. N. Mukherjee, for the
B Sen and S. Gosh, for respondents Nos. 1 to
1963. May 2. The judgment of the Court was
delivered by RAGHUBAR DAYAL J.--This appeal, by special leave, is directed against
the order of the Calcutta High Court disallowing the application of the
appellant under sub-r.
(2) of r. 9 of Order XXII of the Code of
Civil Procedure, hereinafter called the. Code, for the setting aside of the
abatement of the suit it had instituted against the father of the respondents.
The suit was instituted on April 29,1952, by
the appellant corporation against Kalosashi Banerji, father of the respondents,
to recover a sum of money due on a mortgage by deposit of title deeds. The
defendant contested the suit.
Ultimately, a 497 preliminary decree in the
suit was passed ex parte on February's, 1955. On an application presented on
June 11, 1955, final decree was passed on June 23, 1955.
The first application for execution of the
decree presented on August 30, 1955, was dismissed for default on October 4,
1955, on account of the decree-holder not taking any steps as a result of the
report of the process-server dated September 14, 1955, stating that the
defendant Kalospshi Banerji had died.
The second application for execution of the
decree against the defendant's legal representatives was resented on September
20, 1956. On January 30 1957, the respondents filed an objection under s. 47 of
the Code and on March 1.
1957, they disclosed the date of death of
Kalosashi to be July 20, 1954, by producing a certified copy of the death
register showing the date.
Thereafter, the appellant filed the
application for substitution, on setting aside the abatement. The respondents
opposed this application and the learned Subordinate Judge, however, held that
the appellant had established that it was prevented by sufficient cause from
continuing the suit and, allowing the application, set aside the abatement of
the suit. The respondents then went up in revision to the High Court. The High
Court disagreed -with the Subordinate judge and held that the appellant bad
entirely failed to make out any good cause for the delay in applying for the
setting aside of the abatement and for applying for substitution much later
then the period allowed by law.
Kalosashi, the defendant, died on July, 20,
1954. The suit abated on account of the plaintiff having taken no steps to
bring the legal representatives on record within the period of 90 days as 498
required by Art. 176 of I Schedule to the Limitation Act.
The appellant could have applied for the
setting aside of the abatement within the next 60 days in view of Art. 171.
Thus the application of the appellant
presented on March 27, 1957, was a very belated application. The appellant
therefore had to satisfy the Court in two respects. Firstly it had to satisfy
the Court, in order to obtain advantage of the provisions of s. 5 of the
Limitation Act which applies to applications under r. 9 (2) of O. XXII in view
(3) of r. 9 of that Order, that it had
sufficient cause for not making the application within the period of limitation
prescribed for an application to set aside the abatement of the suit and,
secondly, it had to establish that it was prevented by any sufficient cause
from continuing the suit by making an application under r. 4 of O. XXII for the
legal representatives of the deceased defendant to be made parties to the suit
within the prescribed period of limitation. To satisfy the Court in these
respects, the appellant had to show when it learnt that the defendant had died
prior to the passing of the decree, that it was necessary to implead legal
representatives of the deceased in the suit and that the delay in knowing of
this fact and in its applying for the setting aside of the abatement of the
suit was not due to laches on its part. On these two questions of fact the
findings of the trial Court were in its favour.
It is not necessary for the purpose of this
appeal to state the reasons which were urged as a justifiable excuse for the
inability of the appellant to take the necessary steps earlier. It is not open
to the High Court to question the findings of fact recorded by a Subordinate
Court in the exercise of its revisional jurisdiction under s. 115 of the Code
which, it is well-settled, applies to cases involving questions of
jurisdiction, i. e. questions regarding the irregular exercise or non-exercise
of jurisdiction or the illegal assumption of jurisdiction by a Court and is not
499 directed against conclusion of law or fact in which questions of
jurisdiction are not involved : See Bala Krishna Udayar v. Vasudeva Aiyar (1);
M/s A. Batchamian Sahib and Co. v. A. N. Channiah (2). This legal position is
not disputed for the respondents.
It is however contended for the respondent
that a decision on a question of limitation involves the question of
jurisdiction and in support of this contention reliance is placed on the case
reported as Joy Chand Lal Babu v. Kamalaksha Chaudhury (3). This case laid down
no different principle of law. What it said in that connection was quoted with
approval in Keshardeo Chamria v. Radha Kissen Chamria (4) and those
observations are :
"There have been a very large number of
decisions of Indian High Courts on section 115 to many of which their Lordships
have been referred. Some of such decisions prompt the observation that High
Courts have riot always appreciated that although error in a decision of a
subordinate court , does not itself involve that the subordinate court has
acted illegally or with material irregularity so as to justify interference in
revision under sub- section (c), nevertheless, if the erroneous decision
results in the subordinate court exercising a jurisdiction not vested in it by
law, or failing to exercise a jurisdiction so vested, a case for revision
arises under sub- section (a) or sub-section (b) and sub-section (c) can be
ignored." The further observations in that case on which learned counsel
for the respondents mainly relies are :
"The cases of Babu Ram v. Munna Lal (5)
and Hari Bhikaji v. Naro Vishvanath may be (1)(1917) L -R. 44 1. A. 261, 267.
(2) C. As 452 and 487/62 decided on
(3) (1949) L R 76 I.A. 131,142 (4) (1953)
S.C.R. 136,152 (5) (1927) I.L.R. 49 ALL.454 (6) (1885) I.L.R. 9 BOM.432 500
mentioned as cases in which a subordinate court by its own erroneous decision
(erroneous, that is, in the view of the High Court), in the one case on a point
of limitation and in the other on a question of res judicata, invested itself
with a jurisdiction which in law it did not possess and the High Court held,
wrongly their Lordships think, that it had no power to interfere in revision to
prevent such a result." These remarks are not applicable to the facts of
the present case. They apply to cases in which the law definitely ousts the
jurisdiction of the Court to try a certain dispute between the parties and not
to cases in which there is no such ouster of jurisdiction under the provisions
of any law, but where it is left to the Court itself to determine certain
matters as a result of which determination the Court has to pass a certain
order and may, if necessary, proceed to decide the dispute between the parties.
The distinction between the two classes of cases is this. In one, the Court
decides a question of law pertaining to jurisdiction. By a wrong decision it
clutches at jurisdiction or refuses to exercise jurisdiction. In the other, it
decides a question within its jurisdiction. In the present case, the question
whether there was a sufficient cause was exclusively within the jurisdiction of
the Court and the Court could decide it rightly or wrongly.
Section 3 of the Limitation Act enjoins a
Court to dismiss any suit instituted, appeal preferred and application made,
after the period of limitation prescribed therefor by the I Schedule
irrespective of the fact whether the opponent had set up the plea of limitation
or not. It is the duty of the Court not to proceed with the application if it
is made beyond the period of limitation prescribed.
The Court had no choice and if in construing
the necessary provision of the Limitation Act or in determining which 501
provision of the Limitation Act applies, the Subordinate Court comes to an
erroneous decision, it is open to the Court in revision to interfere with that
conclusion as that conclusion led the Court to assume or not to assume the
jurisdiction to proceed with the determination of that matter.
Section 5 of the Limitation Act, on the other
hand., empowers the Court to admit an application, to which its provisions arc
made applicable, even when presented after the expiry of the specified period
of limitation if it is satisfied that the applicant had sufficient cause for
not presenting it within time. The Court therefore had jurisdiction to
determine whether there was sufficient cause for the appellants not making the
application for the setting aside of the abatement of the suit in time and, if
so satisfied, to admit it.
Babu Ram'S case (1), referred to in the
observations relied on for the respondent was a case, which according to the
reports, was a case in which the application for setting aside the ex parte
decree passed on December 15, 1925, was made on April 19, 1926,much beyond the
period ;of one month prescribed for making such applications from the date of
the decree. The question of limitation was simply ignored by the trial Court
which restored the suit. The High Court held that the mere fact of the
appellate Court's granting the application for restoration amounted to a
decision in law that the application had been presented within time and that
such a decision, even if wrong, did not fall under either cl. (a), (b) or (c)
of s. 115 C.P.C. It was this view of the Court which was held by the Privy
Council to be wrong. The case does not relate to the Trial Court's finding that
there was sufficient cause for not making the application within the period
(1) (1927) 1. L R. 49 AIL 454 502 The other
case referred to viz., Hari Bhikaji's Case (1). was where the Trial Court had
gone wrong on the question of res judicata. Section II of the Code prohibits
any Court -from trying any suit or issue which would be covered by the various
provisions of that section. There is no option in the Court to try such a suit
in any circumstance. Similar was the Joy Chand Case (2),in which the judical
Committee had made those observations. In that case the judgment debtors, in a
decree passed in a suit for the recovery of the amount-of money lent, applied
30 and 36 of the Bengal Money Lenders Act for
relief. The provisions of the Act applied to suits for recovery of loans other
than commercial loan as defined in that Act. If the loan to recover which a
suit was instituted was a commercial loan, relief claimed by the judgment
debtors could not have been granted to them as the Act did not apply to
commercial loans and as the Court had no jurisdiction to give the necessary
relief. The trial Court held that the loan in that suit was a commercial loan
and therefore did not come within the terms of the Act. The High Court
disagreed with that view and held that the loan was not a commercial loan.
The High Court had therefore set aside the
order of the Subordinate judge in the exercise of its revision jurisdiction.
The judicial Committee considered whether the High Court was right in doing so
and said at p. 142 :
"In so doing, on the assumption that his
decision that the loan was a commercial loan was erroneous, he refused to
exercise a jurisdiction vested in him by law, and it was open to the High Court
to act in revision under sub-s. (b) of s. 115." and then followed the
observations already quoted above. It is clear that on the decision of the
question the Subordinate Court had to determine in (1) (1885) I.L.R. 9 Boom.
(2) (1949) L.R. 76 I.A. 131, 142, 503 that
case depended its very jurisdiction to take action under that particular Act.
It had the jurisdiction to decide the question, but it could not give
jurisdiction to itself or give up the exercise of its jurisdiction in the
matter on the basis of its finding if that be erroneous.
Neither the facts of that case are comparable
to the facts of the present case nor the observations relied on the learned
counsel for the respondents can be applicable to this case, as here the
Subordinate judge had jurisdiction to decide both the questions of 'fact viz.,
whether the appellant had sufficient cause for not making an application for
setting aside the abatement of the suit within the period prescribed and
therefore had sufficient cause for the Court's exercising its discretion in
extending the period of limitation in view of the provisions of s. 5 of the
Limitation Act and also the fact whether the appellant was prevented from
sufficient cause from not making an application for the substitution of the
legal representatives within the prescribed period of limitation and thus
continuing with the suit. The Court had the jurisdiction to decide both the
questions of fact and also to proceed with the suit as a result of its
We may refer to two cases relied on for the
respondents. In Dwarka v. Union of India (1), an application for setting aside
an ex parte decree dated November 30, 1951 was made on January 25, 1952, Though
made after the expiry of the period of limitation, it was held to be within
time on the view that the Court, though open on January 2, 1952 must be treated
as closed as DO substantive work was transacted on that day. The High Court
held that the trial Court was wrong in its view about the Court being taken as
closed on January 2, and therefore the High Court interfered in revision. The
trial Court misapplied the provisions of s. 4 of the Limitation Act which
allows the making of an application on the day on which the court reopens after
the day on (1)(1954) 1, L. R. 33 Pat. 176.
504 which the period of limitation prescribed
for making the application expires and on which day the Court happens to be
closed. The trial Court had gone absolutely against the provisions of this
section in ignoring the fact that the Court reopened on January 2, and not on
January 25, 1952.
The High Court, in coming to its conclusion,
relied on the provisions of s. 3 of the Limitation Act. Section 5 of the
Limitation Act is not applicable to applications for setting aside ex parte
decrees under O.IX, r. 13 of the Code. This case does not decide that the
finding about the Court being satisfied about the existence of sufficient cause
was such a finding as involved jurisdiction and therefore could be interfered
with by the High Court.
In the case reported as Basantilata v. Amar
Nath(1) the High Court interfered as the Trial Court had misconstrued and mis-applied
the provisions, of ss. 10 and 11 of the Indian Soldiers (Litigation) Act 1925
(Act IV of 1925). The suit was dismissed on December 14, 1942. An application
for the setting aside of the order of dismissal was made on July 15, 1947. The
plaintiff, who was a soldier, served under war conditions from May 23, 1942 to
November 25, 1946 when he was discharged. Thus the total period the plaintiff
served under war conditions was 4 years 6 months and 3 days.
The question was whether this entire period
had to be excluded in computing the period of limitation for making the
application for setting aside the dismissal of the suit.
The Subordinate Judge excluded it and' the
High Court considered it unjustifiable to exclude the period prior to December
14, 1942, the date of the decree, as that period could not have in any way
prevented the plaintiffs in making the application for the setting aside of the
dismissal order. Here again, the error committed by the Trial Court was not in
coming to a finding of fact in connection with the provisions (1) A. 1. R. 1950
505 of s. 5 of the Limitation Act which
applied to such applications but on the Court's deciding the question of
limitation in connection with which sub-s. (2) of s. 10 followed practically
the language of s. 3 of the Limitation Act as it said that no such application
would be entertained unless it was made within a certain time.
We arc therefore of opinion that the High
Court fell in error in interfering with the finding of fact arrived at by the
Subordinate judge with respect to the appellants having sufficient cause for
not making an application for bringing the respondents on record within time
and for not applying for the setting aside of the abatement within time. We
allow the appeal with costs throughout, set aside the order of the Court below
and restore that of the Trial Court. It will 'now proceed according to law with
the further execution of the decree on the second application presented by the
appellant for the purpose.