Atar Singh vs Rajendra Kumar

IkramulBari, J.—Arguments of both sides have been heard on application under Section 5 of the Limitation Act and on the revision on 882000.

The revisionist has filed this revision with delay against the judgment and order dated 26898 whereby Small Causes Court''s case was decided in the absence of the revisionist. The revision has been filed alongwith application for condonation of delay under Section 5 of the Limitation Act on 221299.

Alongwith the application for condonation of delay an affidavit of the revisionist has been filed. After narrating the particulars about the suit in paragraphs 1 to 4, it has been stated in para 4 that the revisionist who was the defendant in the suit could not appear on the date of hearing i.e. 26 898 due to some reasons and a decree for his ejectment was passed exparte. In paragraph 5 and subsequent paragraphs, it is stated that on 24998, he moved an application under Order IX, Rule 13, C.P.C. which was ultimately dismissed on 27101999; that against the said order of dismissal dated 271099, he filed a revision No. 505 of 1999 before this Court but the same was dismissed on 141299; that the opposite party who was the plaintiff is in a hurry to execute the exparte decree and has instituted execution case No. 1 of 1999.

On behalf of the opposite party, the application was contested and it was submitted that the time spent in prosecuting the application under Order IX, Rule 13, C.P.C. and revision No. 505 of 1999 cannot be excluded from computation of the limitation period under Section 14 of the Limitation Act.

It is noticeable that the revisionist before this Court has not claimed benefit of Section 14 of the Limitation Act in so many words. He has only narrated the events in the accompanying affidavit. He seems to have tried to justify the delay by narrating those events. But since the question of applicability of Section 14 was discussed during the hearing on the application, it would be proper to notice Section 14 of the Limitation Act. Section 14 is applicable, where some period was spent in prosecuting with due diligence and in good faith another civil proceeding relating to the same matter in a Court which from the defect of jurisdiction or other cause of a like nature is unable to entertain it. In the present case, the Court below did not reject the application under Order IX, Rule 13, C.P.C. on the ground that it was unable to entertain it for want of jurisdiction or for reason of the like nature. Obviously, Section 14 is not attracted.

As regards the sufficient cause for delay in filing the present revision, which is relevant for purposes of Section 5 of the Limitation Act, it is to be pointed out that even if the revisionist delayed it till his application under Order IX, Rule 13,, C.P.C. was decided, the sufficient cause could have existed upto 27101999. Thereafter, there was no reason for not filing the revision against exparie order dated 2681998. It appears that the revisionist had the motive of lingering the matter and, therefore, in the first instance he filed Revision No. 505 of 1999 against the rejection of the application under Order IX, Rule 13, C.P.C. and after its dismissal on 14121999, he has filed this revision against the exparte decree. There is no explanation as to why he could not challenge the expane decree also when he was filing the application under Order IX, Rule 13, C.P.C. and then the revision against the order dismissing the application under Order IX, Rule 13, C.P.C There is, therefore, absence of sufficient cause for the delay in this revision. The delay can not be condoned under these circumstances.

The application for condonation of delay is, therefore, dismissed.

The revision, being barred by time is also dismissed. Revision dismissed.