Calcutta High Court (Appellete Side)
Asraful Hoque & Anr vs Sankar Das & Ors on 25 November, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE JUSTICE PARTHA SARATHI SEN
C.O. No. 1484 of 2021
Asraful Hoque & Anr.
Vs
Sankar Das & Ors.
For the Petitioners : Mr. Sarbananda Sanyal, Adv.
For O.P No. 1 : Mr. Rwitendra Banerjee, Adv.
: Mr. Shibasis Chatterjee, Adv.
: Mr. Devdutta Pathak, Adv.
Last Heard on: : 23.11.2022
Judgment on: : 25 .11.2022
Partha Sarathi Sen, J. : -
1. The present revisional application arises out of order no.21 dated
26.03.2021 as passed by the Learned Additional District Judge, Jangipur,
Murshidabad in Title Appeal No. 15/2018 whereby and whereunder the said
court by the impugned order dismissed the appellants' application under
Section 5 of the Limitation Act on account of their absence and by the self
same order recorded dismissal of the said appeal.
2. The appellant felt aggrieved and thus preferred the instant revisional
application.
3. In course of hearing learned advocate for the petitioners/appellants
draws attention of this Court to the certified copy of the impugned order. It is
contended by him that by the impugned order learned trial court ought not to
have reject the limitation petition in absence of the present petitioners. It is
further contended that learned trial court acted beyond the law by dismissing
the Title Appeal No. 10 of 2018 since he has flouted the provisions of
Explanation of Order 41 Rule 17 of the Code of Civil Procedure.
4. In support of his contention learned advocate for the petitioners places
his reliance upon the reported decision of Deva Ram and Anr. Vs. Ishwar
Chand and Anr. Reported in (1996) AIR (SC) 378: (1995) 6 SCC 733.
5. While opposing the contention of the petitioners, learned advocate for the
opposite parties submits that though while passing the impugned order
learned trial court committed a mistake in dismissing the said appeal
overlooking the Explanation of Order 41 Rule 17 of the Code of Civil Procedure
but since the impugned order of rejection of the limitation petition is passed in
an appeal itself, the same is to be construed as an order passed in an appeal
and that an order dismissing such an appeal tantamounts to a decree, and
challenging the impugned order, second appeal to be preferred. It is thus
contended that the instant revisional application is not maintainable in the eye
of law.
6. In support of his contention learned advocate for the opposite parties
places his reliance upon the following three reported decisions namely:-
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i. Mela Ram and Sons vs. Commissioner of Income Tax
reported in AIR 1956 SC 367;
ii. Prabodh Choudhury Das And Another vs. Mahamaya Das
And Others reported in (2020)18 SCC 701;
iii. Shyam Sundar Sarma vs. Pannalal Jaiswal And Others
reported in (2005) 1 SCC 436.
7. On perusal of the entire materials as placed before this Court especially
the certified copy of the impugned order it reveals to this Court that on the day
of passing of the impugned order the appellants were absent and accordingly
none moved limitation petition as filed by the appellants and consequently
such limitation petition was rejected. Such being the position this Court has
got no hesitation to hold that the petition under Section 5 of the Limitation Act
was practically dismissed not on merit but on default. It further appears that
by the self same order learned trial court dismissed the said appeal for
appellants' default without entering into its merit.
8. In view of such, under no stretch of imagination it can be said that by
the impugned order the learned trial court dismissed the Title Appeal No.15 of
2018 on its merit on which a decree can be drawn up. The reported decisions
as placed from the said opposite parties, in considered view of this Court, have
got no nexus with the facts and circumstances as involved in the present lis
since those judgements were pronounced in different perspectives.
9. In view of such, this Court holds that the instant revisional application
is maintainable and is hereby allowed.
10. Accordingly the impugned order no.20 dated 26.03.2021 as passed in
Title Appeal No.15 of 2018 by Learned Additional District Judge , Jangipur,
Murshidabad is hereby set aside.
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11. Learned Additional District Judge, Jangipur, Murshidabad is hereby
directed to hear out the petition under Section 5 of the Limitation Act as filed
by the petitioners herein on its merit after giving the respondents therein an
opportunity to file their written objection against the petition under Section 5 of
the Limitation Act as filed by the appellants, if not, filed in the mean time.
12. With the aforementioned observation the instant revisional application is
disposed of.
12. Urgent Photostat Certified copy of this judgment, if applied for, be
supplied to the parties expeditiously after complying with all necessary legal
formalities.
(Partha Sarathi Sen, J.)
