Smt. Minati Patra vs The Sales Unit Head
2023 Latest Caselaw 11804 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                            R.S.A. No.6 of 2023

    In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing the judgment dated 31st October, 2022
    passed by the learned 2nd Additional District Judge, Balasore in
    R.F.A. No.13/224 of 2020/2016 confirming the judgment and
    decree dated 6th October, 2016 and 20th October, 2016 respectively
    passed by the learned Civil Judge (Senior Division), Balasore in
    Civil Suit No.420 of 2009 (1558-2014).
                                      ----

        Smt. Minati Patra                       ....        Appellant

                                  -versus-

        The Sales Unit Head, ACC                ....      Respondents
        Limited, Bhubaneswar, City
        Centre & Others

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellant     -       M/s.Karunakar Rath,
                                          D.Rath, G.C. Maharana and
                                          S.Ghosh,
                                          (Advocates)
                For Respondents -
    CORAM:
    MR. JUSTICE D.DASH
    Date of Hearing :14.09.2023       :      Date of Judgment:29.09.2023

D.Dash,J. The Appellant, by filing this Appeal under Section 100 of

the Code of Civil Procedure, 1908 (for short, 'the Code'), has

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assailed the judgment dated 31st October, 2022 passed by the

learned 2nd Additional District Judge, Balasore in R.F.A.

No.13/224 of 2020/2016.

By the same, the First Appeal filed by the present Appellant

under section 96 of the Code by the unsuccessful Plaintiff in C.S.

No.420 of 2009) has been dismissed and thereby, the judgment

and decree dated 6th October, 2016 and 20th October, 2016

respectively passed by the learned Civil Judge (Senior Division),

Balasore in Civil Suit No.420 of 2009 (1558-2014), have been

confirmed.

2. For the sake of convenience, in order to avoid confusion

and bring in clarity, the parties hereinafter have been referred to,

as they have been arraigned in the Suit.

3. Facts necessary for the parties are as under:-

The Plaintiff filed the suit seeking a money decree against

the Defendants. The claim of the Plaintiff is that she, being the

proprietor of M/s.Siva Sankar Traders at Bhograi, was the dealer

of cements and used to purchase cements and sell those. The

Plaintiff was purchasing huge quantity of cements from the

Company and selling those to the sub-dealers and customers. The

Plaintiff claimed that on account of all the business transactions,

she is entitled to get a sum of Rs.3,16,891/- from the Defendants

RSA No.6 of 2023 {{ 3 }}

and since the Defendants did not pay the said sum, in spite of

several demands from the side of the Plaintiff, the suit was filed.

4. The Defendants, in their written statement, while traversing

the plaint averments, very much asserted that the suit is barred

by limitation and also not maintainable since the Plaintiff, based

on the very self-same claim, having filed the previous suit, had

withdrawn the same without seeking the leave to institute a fresh

suit subsequently. The suit has been dismissed on the ground of

limitation and also being barred under Order 23 Sub Rule 4 of

Rule 1 of the Code.

5. Mr.K.Rath, learned counsel for the Appellant (Plaintiff)

submitted that the views taken in that regard by the Courts below

are not correct and liable to be up-set. He, therefore, submitted

that while considering the question of limitation, the provision

contained in Section 14 of the Limitation Act has not been taken

into account and without applying the same in its proper

perspective to the facts and circumstances of the case, the Courts

below have answered the said issue against the suitor. He further

submitted that withdrawal of the previous suit filed by the

Plaintiff, even though was without the leave to file the same, that

does not have any adverse legal implication for the present suit

since the Plaintiff, during the interregnum, was pursuing his

remedy before the forums under the Consumer Protection Act,

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1986 (in short, 'the P.C. Act'). He therefore, urged for admission

of this Appeal to answer the above as the substantial questions of

law.

6. Keeping in view the submissions, I have carefully read the

judgments passed by the Courts below.

7. In order to address the submission of the learned counsel

for the Appellant (Plaintiff) and thereby answer as to whether the

Appeal involves any substantial question of law meriting its

admission; some background facts are required to be placed.

8. Admittedly, the Plaintiff had filed Money Suit No.56 of

2005 advancing the above money claim as against the

Defendants. The suit was suddenly withdrawn and the matter

then was persuaded before the forums available under the C.P.

Act. Finally, the National Consumer Disputes Redressal

Commission, said that the dispute raised by the Plaintiff and the

claim advanced are not falling for adjudication/direction by the

forums created under the C.P. Act. Echoing in that view, when

National Consumer Disputes Redressal Commission directed the

Plaintiff to institute the claim in proper Court, the present suit has

been filed.

9. The provision of Section 14 of the Limitation Act is meant to

condone certain bona fide conduct of a suiter instead of being

RSA No.6 of 2023 {{ 5 }}

made to suffer for his such conduct or the conduct of his counsel.

The presumption of bona fide is not ipso facto applicable for such

condonation. Nothing shall be deemed to have been done in good

faith, which was not done with the due care and diligence. It has

also no applicability where the earlier proceeding/suit has failed

due to negligence or latches. The provision contained in Section

14 of the Limitation Act does not come to the rescue of a party

guilty of negligence, latches, inaction or bad faith. A party, who

pursues the proceeding in ignorance of law, cannot be said to

prosecute with due diligence. Therefore, the period of limitation

running from the date of accrual of the cause of action for filing

the suit in this case was neither arrested during the period, the

matter progressed in these forums under C.P. Act nor that period

would stand excluded. In that view of the matter, the suit is

clearly barred by limitation.

10. Adverting to the facts of the case, it is seen that the earlier

suit, seeking the same relief, had been withdrawn. Withdrawal

was not with the leave of the Court. Thus, said suit stood

dismissed because the Plaintiff withdrew the same. That being

the position, the subsequent suit, without obtaining the leave, is

clearly not maintainable on the face of the provisions contained in

Sub Rule 1 of Rule 4 of Order 23 of the Code.

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11. In the wake of aforesaid, this Court finds no such

substantial question/s of law standing for answer this Appeal

meriting its admission.

12. In the result, the Appeal stands dismissed. There shall be no

order as to cost.

(D. Dash), Judge.

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 03-Oct-2023 16:09:04

RSA No.6 of 2023