Kumari Pooja Rani vs Smt. Vimla Bisht

By means of present writ petition, the petitioner seeks a writ, order or direction in the nature of certiorari quashing the judgment and order dated 02.03.2017, passed by District Judge, Almora in SCC Revision no. 05 of 2016, Kumari Pooja Rani vs Smt. Vimla Bisht.

Learned revision court has refused to entertain S.C.C. revision only on the ground that the revision has been filed after 60 days, whereas the period of limitation is 30 days and no reason has been assigned for filing the S.C.C. revision late.

Section 5 of the Limitation Act, 1963, provides as under: "Extension of prescribed period in certain cases. -

Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant

satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation. -The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

[Emphasis supplied]

Section 25 of the Provincial Small Cause Courts Act, 1887 reads as below: "Revision of decrees and orders of Courts of Small Causes. -The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application of an aggrieved party made within thirty days from the date of such decree or order, call for the case and pass such order with respect thereto as he thinks fit."

[Emphasis supplied]

It will be worthwhile to quote Section 115 of the Code of Civil Procedure, 1908 (Uttarakhand Amendment) here-in-below for convenience: "Revision. -(1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has -

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction so vested; or

(c) acted in exercise of its jurisdiction illegally or with material irregularity.

(2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.

(3) The superior court shall not, under this section, vary of reverse any order made except where-

(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.

(4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.

Explanation I. -In this section -

(i) the expression "superior court" means -

(a) the district court, where the valuation of a case decided by a court subordinate to it does not exceed five lakh rupees;

(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees;

(ii) the expression "order" includes an order deciding an issue in any original suit or other proceedings.

Explanation II. -The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement.

Explanation III . -The provision of this section shall not be applicable to the revisions already filed in the High Court before the commencement of this section."

[Emphasis supplied]

Learned lower revision court has arrived at a conclusion that only a point of law has to be seen while entertaining S.C.C. revision and the fact that the revision has been filed after 60 days is a question of fact and, therefore, it refused to condone the delay in filing the S.C.C. revision.

Delay condonation application will always be governed by Section 5 of the Limitation Act and if the delay in filing the revision is condoned and S.C.C. revision is admitted, the same shall be decided on the point of jurisdictional error or any point of law, in terms of sub-section (1) of Section 115 C.P.C. or Section 25 of the Provincial Small Cause Courts Act, 1887, as the case may be. Unfortunately, lower revision court has mixed these two issues by saying that since it is a question of fact that the revision is being filed after 60 days, therefore, it will not entertain the S.C.C. revision on the point of law. The same is erroneous finding and, therefore, interference is called for in the order impugned.

It is the submission of learned counsel for the petitioner that the reason for not filing the S.C.C. revision in time [30 days, Section 27 of the Act] has been given in the application itself. It is also the submission of learned counsel for the petitioner that the fact that S.C.C. revision was delayed by 30 days, was not mentioned in Munsarim''s report and, therefore, delay condonation application was filed in the court only after the objections were filed by the respondent.

Reliance is placed upon Udai Bhan Gupta vs Hari Shankar Bansal and others, AIR 1984 SUPREME COURT 1469. It has been held by Hon''ble Supreme Court in para 3 of said judgment, as under:

"Assuming though we have our grave doubts that the High Court was right in holding that a period of limitation for filing revision petition before the High Court was 30 days as provided in S. 25 which catered to the situation where the revision petition would lie to the District Judge. In such a confusing situation about the legal position it should have called upon the appellant to seek condonation of delay, if there be any. It was all the more necessary because whenever an appeal or a revision petition is filed in the Registry of the High Court, the defects have to be pointed out and if the revision petition filed by the appellant was barred by limitation, the Registry ought to have pointed out the defect which would have prompted the appellant to seek condonation of delay. No such objection appears to be taken by the Registry, and the High Court at the time of hearing of the revision petition straight-way proceeded to entertain the preliminary objection and disposed of the vexed question in the manner which leaves much to be desired."

Present controversy is squarely covered by the aforesaid dictum of law, as laid down by Hon''ble Apex Court.

Learned counsel for the petitioner also placed reliance on paragraph no. 7 of the judgment rendered by Hon''ble Apex Court in Steelage Industries Limited & another vs Smt. Chander Bagai, AIR 1992 BOMBAY 406. A portion of said para is reproduced here-in-below for convenience: "7. ...........

The Court further observed :

"A party could not be allowed to suffer for any omission or lapse on the part of his Counsel, when it relates to requirement of any law. The rules of procedure are meant to advance the cause of justice. Moreover, the opposite party could be compensated by payment of costs."

...........

In view of the above discussion, the order impugned dated 02.03.2017 is liable to be set aside and is, accordingly, set aside. The writ petition is allowed. Order impugned dated 02.03.2017 is hereby set aside. The matter is remanded back to learned revision court for reconsideration of the matter afresh, in accordance with law.

Since the present writ petition is being disposed of without notice to the respondent, therefore, liberty is granted to her to move for recall of this order, if she feels aggrieved with the same.