Md. Jiaur Rahman vs Sofiya Begum And 4 Ors. B
2022 Latest Caselaw 4434 Gua

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GAHC010135692021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : I.A.(Civil)/1572/2021 In
                             MAC App./7503/2021

         MD. JIAUR RAHMAN
         S/O- LATE NURUL ISLAM, R/O- KOROKANI, P.O. NAPAM, P.S. BARGHAT,
         DIST. SONITPUR, ASSAM



         VERSUS

         SOFIYA BEGUM AND 4 ORS. B
         W/O- LATE SOBIKUL ISLAM, R/O- NAPAM, TEZPUR, DIST. SONITPUR,
         ASSAM, PIN- 784028.

         2:JARINA KHATUN
         W/O- LATE AMIR ALI
          R/O- NAPAM
         TEZPUR
          DIST. SONITPUR
         ASSAM
          PIN- 784028.

         3:SOHARAM NESSA
          D/O- LATE SOBIKUL ISLAM
          R/O- NAPAM
         TEZPUR
          DIST. SONITPUR
         ASSAM
          PIN- 784028.

         4:AJIJUL HAQUE
          S/O- LATE SOBIKUL ISLAM
          R/O- NAPAM
         TEZPUR
          DIST. SONITPUR
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             ASSAM
             PIN- 784028. (THE RESPONDENT NOS. 3 AND 4 BEING MINOR

BEING MOTHER).

5:THE NEW INDIA ASSURANCE CO. LTD.

REP. BY REGIONAL OFFICE ABC GUWAHATI-5 DIST.- KAMRUP(M) ASSA

Advocate for the Petitioner : MR. S HOQUE

Advocate for the Respondent : MR. K K BHATTA (R-5)

BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

JUDGMENT & ORDER Date : 14-11-2022

Heard Shri S Hoque, learned counsel for the applicant, who, by means of this application, has prayed for condonation of delay of 497 days in preferring the connected appeal against a judgment and award dated 31.07.2018 passed in MAC Case No.16/2015 by which an amount of Rs. 5,70,000/- has been granted.

2. By the aforesaid order, the learned Tribunal has directed that though the amount would be paid by the Insurance Company, the same could be recovered from the owner, as there was violation of the policy conditions.

3. Shri Hoque, learned counsel for the applicant submitted that vide an initial order dated 12.05.2016, the matter had proceeded ex-parte and that order is also challenged in this appeal. The learned counsel submits that as all along in the Tribunal, he was not aware of the case and long after, he had come to know about the case, the present appeal has been filed in which process, the delay has been caused.

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He, accordingly submits that a huge liability has been saddled with the applicant and therefore, he may be given a scope to contest the same on merits.

4. Shri KK Bhatta, learned counsel appearing for the Insurance Company, however, submits that the delay is an inordinate one and not properly explained and therefore, the same is liable to be dismissed.

5. As per the Office Note dated 16.12.2021, service upon the respondent nos. 1 to 4 is complete so far as usual process is concerned.

6. It is a settled principle that the law relating to limitation is required to be interpreted in a pragmatic and justice oriented approach so that technicalities do not stand as a hurdle in the way of substantive justice. At the same time, one also cannot wholly overlook the requirement of limitation. As the objective of the Legislature is to bring litigation to an end and the power to condone the delay has to be exercised in a judicious manner. The aspect of a right being accrued to the contesting party after expiry of the limitation cannot also be brushed aside lightly.

7. Under those principles, let us examine the present case.

8. The limitation prescribed for preferring an appeal against an award of a Motor Accident Claims Tribunal is 90 days which, in the instant case, was on or up-to 14.03.2017. The appellant, however, had preferred the review before the learned Tribunal on 21.06.2017 and the review was rejected on 24.05.2018. In the aforesaid process, delay of about 340 days had occurred.

9. Section 14 of the Limitation Act, 1963 lays down as follows:

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"14. Exclusion of time of proceeding bona fide in court without jurisdiction.--(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

Explanation.--For the purposes of this section,--

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the Page No.# 5/7

day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."

10. The said Section takes care of a situation where a party bona fide pursues a litigation in a forum which is not vested with jurisdiction.

11. In the instant case, a review was preferred in the Tribunal which is not available in law as the Motor Vehicles Act does not provide for any scope of review by the Tribunal. It being a settled law that review is a creature of statute and therefore, in absence of any express provision, no such powers of review can be exercised.

12. On the aspect of Section 14 of the Limitation Act, 1963, the Hon'ble Supreme Court in the case M/s. Consolidated Engineering Enterprises Vs. The Principle Secretary (Irrigation Department) & Ors., reported in (2008) 7 SCC 169 was considering the applicability of the aforesaid Section in an application under Section 34 of the Arbitration and Conciliation Act, 1996. The following extracts would be relevant:

"54. On the other hand, Section 14 contained in Part III of the Limitation Act does not relate to extension of the period of limitation, but relates to exclusion of certain period while computing the period of limitation. Neither sub-section (3) of Section 34 of the AC Act nor any other provision of the AC Act exclude the applicability of Section 14 of the Limitation Act to applications under Section 34(1) of the AC Act. Nor will the proviso to Section 34(3) exclude the application of Section 14, as Page No.# 6/7

Section 14 is not a provision for extension of period of limitation, but for exclusion of certain period while computing the period of limitation. Having regard to Section 29(2) of the Limitation Act, Section 14 of that Act will be applicable to an application under Section 34(1) of the AC Act. Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders therefore lays down the correct legal position."

13. In a recent decision of Oriental Insurance Co. Ltd. Vs. M/s. Tejparas Associates & Exports Pvt. Ltd. , reported in 2019 SCC Online SC 1281, the Hon'ble Supreme Court had reiterated the earlier decision of M/s. Consolidated Engineering Enterprises (supra).

14. The present is a case where the applicant would also get the benefit of Section 14 of the Limitation Act. Though this point has not been taken up as a ground, the same being a pure point of law, the same is considered in the interest of justice. Therefore, it is seen that a major part of the delay is covered in the aforesaid process of pursuing the review petition.

15. In view of the aforesaid discussions, this Court is of the opinion that the delay of 497 days, though appears to be a long one, is explained by the peculiar facts and circumstances and therefore, the same is condoned.

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16. Interlocutory application, accordingly stands disposed.

JUDGE

Comparing Assistant