Radhanath Jena Vs. Jadunath Jena and Others

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....before an appropriate decision can be taken.3. order 14, rule 2, code of civil procedure, reads as follows :--'2. court to pronounce judgment on all issues--(1) notwithstanding that a case may be disposed of on a preliminary issue the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the timebeing in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.' the intent and purpose of this provision is to ensure decision on all issues simultaneously. it has been held in a series of decisions of this court that if an issue raised a mixed question of law and fact, even if relating to question of jurisdiction, such issue should nor be decided as a preliminary issue. (see, 64 (1987) c. l. t. 560 : 1987(2) o. l. r. 39. (madhabananda ray and another v. m/s spencer and company ltd.). since in the present case, itcannot be said that the two issues can be decided only on the question of law and it ma; be necessary for the parties to adduce evidence, the trial court has committed a material irregularity in directing that issues nos. ii and iii should be tried as preliminary issues. the impugned order is accordingly quashed. the trial court is directed to dispose of the suit as expeditiously as possible, preferably within a period of six months from today.4. the civil revision is accordingly allowed. there will be no order as to costs.5. civil revision allowed.