Manindra Land and Building v. Bhutnath Banerjee and Others

It is however contended for the respondent that a decision on a question of limitation involves the ques- tion of jurisdict10n and in support of this contention reliance is placed on the case reported as Joy Chand Lal Babu v. Kamalaksha Ohaudhury (1). This case laid down no different principle of law. What it , said in that connection was quoted with approval in Keshardeo Ohamria v. Radha Kissen Ohamria (') 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 not 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 subor- dinate court exercising a jurisdiction not vested in it by law, 01· failiug to exercise a jurisdiction so vested, a case for nvision 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 coun.sel for the respondents mainly relies are: "The cases of Babu Ram v. Munna Lal (5) and Hari, Bhikaji v. Naro Vishvanath (')may be (!) (1917) L .R. 44 I. A. 261, 267. . O. At+52 and 487/62 decided on 19.10.1962. !l (19+9. ) L.R. 76 !..' .. 131, 142. 14) [1953) S.O.R. 136, 152. 5 (1927)1,L,ll, i9 All, 4St. (6J I 1835) 1.L.R, 9 Boai. 4$2. lHJ M•aw.L.ww 8oildin1 c.,,._ LU. v. B,,,,_ Bl-J• llofW.. D'1fl/ I. 011iniro Land and '.'Builiing C01pn. Ltd. v. , Bhutnath Ban11j11 '500 SUPREME COURT REPORTS [1964) VOL. 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 inter· · fere in revision to prevent such a result." These remarks are not applicable to the facts ofthe 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 pres· cri bed 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 3 S.C.R. SUPREME COURT REPORTS 501 prov!Slon of the Limitation Act applies, the Sub- ordinate 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 are made applicable, even when presented after the expiry of the· specified period of limitation if it ia 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 sd satisfied, to admit it. · · · Babu &1m'a raae ('), referred to in the obser- vation• relied on for the respondent was a case, which according to the reports, was a case in whic;h tho 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 montli prescribed for making such applications from the date of the decree. The question of limitation was. simply ignored by the trial Court which restored tl;ie suit. The High Court held that the mere fl!.ct- 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 sqch a decision, even if wrong, did not fall under eii"her 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 n()t relate to the ·Trial Court's finding that there was sufficient cause for not making the. applicatiqµ within the, period prescribe9, ·· (ll (1927) 1. L. a. te AU .• 45*, 191f$ Maninira 61!tf B•ild,.g . •• B•n1r/•f, &1Aui11 Dqd /, "" M....,,.L.Mt1M lhril6t c.r,.. r.u. v. .,,,.,, ·llaerj,, SUPREME COURT REPORTS [i964]'VOt.. The other case referred to viz., Hari Bhikaji'a Gase ('), was where the Trial Court had gone wrong on the question of res judicata. Section i l of the Code prohibits any Court from trying any suit or issue which would be covered by the various provi- sions of that section. There is no option in the Court to try such a suit in any circumstance. Similar was the Joy Chand Case ('),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 ame!unt of money lent, applied under ss. 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 com- mercial Joan 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 commer- cial 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 commerical loan. The High Court had therefore set aside the order of the Subordinate Judge in the exercise of. its revisional jurisdiction. The Judicial Committee considered whether the High Court was right in doing so and said at p. 14,2 : "In so doing, on the assumption that his decision that the loan was a commercial loan was erro· neous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under su b-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) 1,L.&, 9 Bom. 4S2. (1949) L,11, 761.A. !SI, 142, , . 3 s.c.R.. SUPREME COURT REPORTS 503 that case depended its very jurisdiction to take action under that particular Act. It had thejurisdiction 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 erro· neous. ·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 tje period of limitation in view of the provisions of s. 5 of the Limitation Act and also the fact whether the appel· lant was prevented from sufficient 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 ques· tions of fact and also to proceed with the suit as a result of its decision. We may refer to two cases relied on for the respondents. In Dwarka v. Union of India('), an application fo• 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 limi, tation, 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 no 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 mis-applied 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 (l) (!PS*) I, L. R, 5S Pal. 17i, 1961 Manindra "'1ul .,, l Buadin{ c ... ,.. Lii, v. llhum•th B .. n;,, &igluliar J. llO -=-M .. i•dr• L'ai al Builiili1 C.r/111•' ·Ltd • ••• Bhutaath B...,j,, 504 SUPREME COURT REPORTS [1964) VOL. , . ' , I : , - . '· ,. whi,ch the period of limitation prescribed for making the ·application expires and ori wliicli day tlie cburt happens to be' closed. The trial· Court had gtiiie absolutely agaii:tst the provisions of this section in ignoring the fact that the Court 2, and not on January !!5, 1952. The High Ceurt, m comirig to its conclusion, relied on the provisions or s. 3'' ·of the Limitatfon Act. Section 5 or''ilie 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'dccide tliiu the finding a bout the Court being satisfied about; the exiitence · (if sufficient cause was such a finding as i.QvolVed· juriSdiction and could be with by the High Court. • • In the case reported as Baaantilalav . .Amar Nath(') the High Court interfered a:s the Tria1 Coiirt had mis-construed and· mis-applied the provisiOns of ss.10 and 11 of the Indian Soldiers (Litigation) Wet 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 Ju1Yt5, 1947. The plaintiff, wh'o WaS a soldier, served under war conditions from May 23, 1942 ·.to' November 1946 when he was discharged. Thus the total period the' plaintiff served under war conditions' 'was II: yeai:s. 6 months ·and 3 days. · 'fhe question was this en.tire . to be in. the period ofhm1tat1on for makmg. the appl1catwn for' setting aside the of the suit. The Sub: ordinate Judge' excluded it and 'the High Coutt considered it unjustifiable to exclude the. peripd 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. tfie' . settmg. aside of the dismissal order. Here again, the . error committed by the Trial Court was riQt in comihg to a' finding of fact in i:o11nection with the 1 (I) A. I. R, 1950 Cal. 411. 3. S.C.R. SUPJ,lEME-COURl' REPORTS 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) oC 1. 10 followed practically the language of s. 3 of the Limitation Act as it said that no such application would be entertalied unless it was made within a certain time. We arc thc;refqrc; of opinion that the High Court fell in error In interfering with the finding of .ar,rivcd 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 aettinc aside of the abatement within time. We allow the appeal with costs throughout, set aside the otdcr 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 :·. ' - ' Appeal allowed. 110 Ma11indra L•tul 11114 Builtfan1 (,1,jln. Lti • •• Bhuhla Ill Ban1rj11