Santoshini Murmu vs State Of Jharkhand And Ors

This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 28.11.2018 passed in Civil Misc. Case No.130 of 2018 by which a petition for review of the judgment and decree passed Original Suit No.262 of 2016 has been filed by the judgment debtor-the State, who was defendant to the suit and respondent herein, by which the civil miscellaneous petitioner has been admitted even though the petition was barred by limitation for six months and to that effect petition under Section 5 to the Limitation Act for condoning the delay has been filed, but the court below has admitted the civil miscellaneous case without condoning the delay and issued notice.

Mr. Sudhir Kumar Sharma, learned counsel assisted by Mr. Ramchander Sahu, has submitted that the court below has committed gross illegality in passing the said order without dealing with the application filed under section 5 to the Limitation Act and without condoning the delay admitted the miscellaneous case, therefore, the court has not dealt with Order XLI Rule 3A of the Code of Civil Procedure, therefore, the said order suffer from gross illegality.

Mr. J.F. Toppo, S.C (L & C) appearing for the State respondent who is defendant to the suit and judgment debtor has fairly submitted relying upon the settled position of law that if a case is barred by limitation and when the Limitation Act, 1963 is applicable then the suit must be filed supported with petition under Section 5 of the Limitation Act for condonation of delay and first the court should have considered delay part before passing an order under section 5 of the Limitation Act but having not done so the matter needs consideration by the trial court.

Having heard learned counsel for the parties and on appreciating the rival submissions the admitted fact in this case is that a original suit has been filed in which the petitioner being the decree holder wherein the decree has been passed against the State of Jharkhand, who has filed a petition for review of the said decree and judgment in Civil Misc. Case No.130 of 2018 but the said petition was barred by limitation about six months and the judgment debtor filed the said miscellaneous case along with petition under Section 5 of the Limitation Act showing the reason for condoning the delay but the trial court has admitted the miscellaneous case without condoning the delay and directed to hear the matter at the time of final hearing and issued notice upon the decree holder.

The question has been raised by the decree holder that if any lis is barred by limitation, the requirement under law is that in case of applicability of the provision of Limitation Act, 1963, a petition under Section 5 to the Limitation Act, 1963 is to be filed, showing the sufficient cause for condoning the delay and if that would be made, it is incumbent upon the court to first deal with the petition filed under Section 5 to the Limitation Act and if satisfied with the reason shown therein and if the delay is condonable then the question of entering into the admission or hearing of the lis could arise. If this procedure would not be followed and if any decision would be taken the order would not be said proper, it is for the reason that limitation goes to the root of the issues and if the parties do not make an application within time it is incumbent upon the party to apprise the court what prevented him in not coming to the court within time.

The express provision which has been made under Order XLI Rule 3A of the Code of Civil Procedure which stipulates that when an appeal presented after the expiry of the period of limitation specified, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he has sufficient cause for not preferring the appeal within such time.

In that view of the matter, this Court is of the view that the court below has committed illegality in admitting the civil miscellaneous case without condoning the delay, therefore, the same is not sustainable in the eye of law. Consequently, thereof the order dated 28.11.2018 passed in Civil Misc. Case No.130 of 2018 is set aside and the matter is remitted before the trial court to pass a fresh order dealing first with the petition filed under Section 5 of the Limitation Act in accordance with law and without being prejudiced by this order and proceed further.

Accordingly, the writ petition is allowed and disposed of in terms of the direction as aforesaid.