Union of India Vs. Shiyaram Rathore and Another - Court Judgment

Excerpt:
- - 4. ordinarily, against the judgment and decree, a regular first appeal lies to the high court under section 96 of the code of civil procedure, but the defendant/applicant for the reasons best known to him did not challenge the correctness, validity and propriety of the judgment and decree before this court. 7. in the present case, on applicant's own showing, it would clearly appear that the certified copy of the judgment and decree were received by the applicant on 27-12-99. if the said copies were received by them in december, 99, then the appeal could be filed immediately thereafter;orderr.s. garg, j. 1. heard.2. the present revision petition has been filed against the judgment and decree dated 30-6-99, though in the revision memo it is stated that it has been filed against the order dated 30-6-99.3. the tacts leading to this petition are that respondent no. 1 filed a civil suit for recovery of damages on account of the injuries suffered by him in a railway accident. during the course of the trial, the defendants raised a question that the suit was not maintainable before the civil court and the claim should have been lodged before the railway accidents tribunal. the trial court after hearing the parties, while answering the question no, 6 observed that the suit was cognizable by the civil court. it accordingly decreed the suit.4. ordinarily, against the judgment and decree, a regular first appeal lies to the high court under section 96 of the code of civil procedure, but the defendant/applicant for the reasons best known to him did not challenge the correctness, validity and propriety of the judgment and decree before this court.5. in support of the petition, an application under section 5 of the limitation act for condonation of delay has also been filed. according to the said application, the certified copy of the judgment and decree were received by the counsel for the applicant in november, 99, who in his turn sent the same to the office of the general manager, south eastern railway, calcutta, on 27-12-99. it also appears from the application that on 1-5-2000 the execution proceedings started; after obtaining the certified copy of the execution proceedings the same were again sent to the railway administration, who referred the matter to another counsel seeking proper advice. the said counsel required the applicant to contest the execution proceedings by filing the objections. the counsel engaged by the applicant did not file the objections, therefore, the said counsel was changed and the said counsel submitted the objections on 25-8-2000. it appears that on 21-12-2000 the said objections were overruled. the applicant made an application before the executing court that they be granted some time, so that they may obtain stay order from this court. thereafter the present revision petition was filed in this court on 7-2-2001.6. from the above narrations it is clear that the applicant-judgment debtor/defendant did know about the passing of the judgment and decree in june, 99 or in any case in dec., 99 when it was brought to the notice of the applicants that they had suffered a decree. unfortunately, despite gaining the knowledge of the fact, the applicant did not prefer to file an appeal. the delay in instituting or initialing the proceedings can be condoned if there is a sufficient cause for not taking the action or for some reasons which are beyond the control of the party or for some bona fide reason.7. in the present case, on applicant's own showing, it would clearly appear that the certified copy of the judgment and decree were received by the applicant on 27-12-99. if the said copies were received by them in december, 99, then the appeal could be filed immediately thereafter; but the applicant did not file the appeal even for next 13 months. in the application seeking condonation of delay, the applicant has simply given the dates and has said that the sequence of the events assubmitted in the application would show that the delay caused was bona fide.8. law as contained under section 5 of the limitation act, though is stretchable, but it cannot be stretched to such a length to cover the callous conduct of the authority. the application must project some bona fides and if, instead of projecting the bonafides or sufficient cause, it shows absolute carelessness or recklessness; then, the delay in initialing the proceedings cannot be condoned9. if this revision petilion is considered to be against the order dated 21-12-2000 passed by the executing court in the execution proceedings, then too, the revision docs not merit because the executing court was absolutely justified in observing that the question of jurisdiction was already raised and decided in the suit itself; therefore, the very same question could not be raised in the execution proceedings.10. considering the matter from either of the angle, i am unable to hold that either the revision petition against the judgment and decree is maintainable or there is a sufficient cause for extension of time for condonation of delay in initiating the proceedings. even if, this revision is considered to be against the order dated 21-12-2000, the same has no merits.11. firstly, because the revision is not maintainable against the judg-ment and decree passed by the civil court in a regular suit, the revision is not maintainable and it deserves to be dismissed. on the ground of limitation, in the absence of a sufficient cause, the delay cannot be condoned, therefore, also the revision deserves to be dismissed. lastly, if it is taken to be against the order dated 21-12-2000, then, too the revision does not merit and deserves to be dismissed.12. for the reasons aforesaid, the petition is dismissed. the interim order granted earlier is vacated.13. civil revision dismissed.

Judgment:
ORDER

R.S. Garg, J.

1. Heard.

2. The present revision petition has been filed against the judgment and decree dated 30-6-99, though in the revision memo it is stated that it has been filed against the order dated 30-6-99.

3. The tacts leading to this petition are that respondent No. 1 filed a Civil Suit for recovery of damages on account of the injuries suffered by him in a railway accident. During the course of the trial, the defendants raised a question that the suit was not maintainable before the Civil Court and the claim should have been lodged before the Railway Accidents Tribunal. The Trial Court after hearing the parties, while answering the question No, 6 observed that the suit was cognizable by the Civil Court. It accordingly decreed the suit.

4. Ordinarily, against the judgment and decree, a regular first appeal lies to the High Court under Section 96 of the Code of Civil Procedure, but the defendant/applicant for the reasons best known to him did not challenge the correctness, validity and propriety of the judgment and decree before this Court.

5. In support of the petition, an application under Section 5 of the Limitation Act for condonation of delay has also been filed. According to the said application, the certified copy of the judgment and decree were received by the counsel for the applicant in November, 99, who in his turn sent the same to the office of the General Manager, South Eastern Railway, Calcutta, on 27-12-99. It also appears from the application that on 1-5-2000 the execution proceedings started; after obtaining the certified copy of the execution proceedings the same were again sent to the railway administration, who referred the matter to another counsel seeking proper advice. The said counsel required the applicant to contest the execution proceedings by filing the objections. The counsel engaged by the applicant did not file the objections, therefore, the said counsel was changed and the said counsel submitted the objections on 25-8-2000. It appears that on 21-12-2000 the said objections were overruled. The applicant made an application before the executing Court that they be granted some time, so that they may obtain stay order from this Court. Thereafter the present revision petition was filed in this Court on 7-2-2001.

6. From the above narrations it is clear that the applicant-judgment debtor/defendant did know about the passing of the judgment and decree in June, 99 or in any case in Dec., 99 when it was brought to the notice of the applicants that they had suffered a decree. Unfortunately, despite gaining the knowledge of the fact, the applicant did not prefer to file an appeal. The delay in instituting or initialing the proceedings can be condoned if there is a sufficient cause for not taking the action or for some reasons which are beyond the control of the party or for some bona fide reason.

7. In the present case, on applicant's own showing, it would clearly appear that the certified copy of the judgment and decree were received by the applicant on 27-12-99. If the said copies were received by them in December, 99, then the appeal could be filed immediately thereafter; but the applicant did not file the appeal even for next 13 months. In the application seeking condonation of delay, the applicant has simply given the dates and has said that the sequence of the events assubmitted in the application would show that the delay caused was bona fide.

8. Law as contained under Section 5 of the Limitation Act, though is stretchable, but it cannot be stretched to such a length to cover the callous conduct of the authority. The application must project some bona fides and if, instead of projecting the bonafides or sufficient cause, it shows absolute carelessness or recklessness; then, the delay in initialing the proceedings cannot be condoned

9. If this revision petilion is considered to be against the order dated 21-12-2000 passed by the executing Court in the execution proceedings, then too, the revision docs not merit because the executing Court was absolutely justified in observing that the question of jurisdiction was already raised and decided in the suit itself; therefore, the very same question could not be raised in the execution proceedings.

10. Considering the matter from either of the angle, I am unable to hold that either the revision petition against the judgment and decree is maintainable or there is a sufficient cause for extension of time for condonation of delay in initiating the proceedings. Even if, this revision is considered to be against the order dated 21-12-2000, the same has no merits.

11. Firstly, because the revision is not maintainable against the judg-ment and decree passed by the Civil Court in a regular suit, the revision is not maintainable and it deserves to be dismissed. On the ground of limitation, in the absence of a sufficient cause, the delay cannot be condoned, therefore, also the revision deserves to be dismissed. Lastly, if it is taken to be against the order dated 21-12-2000, then, too the revision does not merit and deserves to be dismissed.

12. For the reasons aforesaid, the petition is dismissed. The interim order granted earlier is vacated.

13. Civil Revision dismissed.