JUDGMENT
S. K. Sen. J.
1. The instant appeal is directed against an order dated 18.6.85 passed by C.K. Banerjee, J as he then was, dismissing an
application filed by the appellant for recalling of the order dated 3.8.84 passed by Asha Mukul Pal, J as he then was, whereby an application under section 17(2) of the West Bengal Premises Tenancy Act, 1956 for determination of the arrear rent payable by the appellant was dismissed for default.
2. It is the contention of the appellant that the appellant duly briefed an Advocate to represent its case to take all necessary steps. At the initial stage the respondent opposed the application on the preliminary point that the learned single Judge could not have restored the application as he ceased to have any Jurisdiction to entertain the same since the order of dismissal of the appellant’s application has been drawn up and completed prior to filing of such restoration application. He also urged that the application for restoration and/or recalling of the order was barred by limitation not having been made within 30 days from the date of dismissal i.e. 3.8.84 and the appeal is also barred by limitation.
3. The preliminary point urged by the respondent, however, that the learned single Judge ceased to have jurisdiction to entertain the application was given up by the learned Advocate for the appellant and was not pressed considering the several decisions of this court.
4. In support of his second point, the learned Advocate for the respondent has urged that the restoration application before the learned Judge was barred by limitation. Learned single Judge relying on Article 122 of the schedule to the Limitation Act, 1969 held that the restoration application having been filed beyond the period of 30 days from the date of dismissal order was barred by limitation.
The said Article 122 is set out hereinbelow :–
“122. To restore a suit or appeal or application for review or revision
dismissed for default of appearance or for want of prosecution or for
failure to pay costs of service of process or to furnish security for costs.”
It has also been argued on behalf of the respondent relying on the said Article that the same cannot apply to an application for recalling of an application under section 17(2) of the West Bengal Premises Tenancy Act. It has further been submitted that in fact there is no provision in Articles 1 to 136 of the schedule to the Limitation Act in relation to application for restoration of miscellaneous proceedings like an application under section 17(2) of the West Bengal Premises Tenancy Act, 1956.
5. Accordingly, it has been argued that the limitation period in respect of an application for restoration of an application under section 17(2) of the West Bengal Premises Tenancy Act, 1956 which is in the nature of a miscellaneous application would necessarily be governed by Article 137 of the schedule to the Limitation Act, 1963. In other words, it has been contended by the learned Advocate for the appellant that the limitation period for such restoration application is three years from the date of dismissal of the application sought to be restored.
6. It appears on perusal of the said Article 122 that the same stipulates 30 days limitation period for application to restore specific proceedings mentioned therein viz. a suit or an appeal or application for review or
application for revision dismissed for default. It also appears on true construction of Article 122 that the same does not relate to an application for restoration of any other legal proceeding including a proceeding under section 17(2) of the West Bengal Premises Tenancy Act which is in the nature of a miscellaneous proceeding.
7. In this connection Judgment and decision of the Special Bench of this court in the case of Mst. Nurnahar Bewa v. Rabindra Nath Dev may be taken note of. In the aforesaid decision it was held that the limitation period for an application for restoration of a miscellaneous case under Order 9 Rule 4, 9 or 13 of the Civil Procedure Code would be governed by Article 137 of the Schedule to the Limitation Act 1963 i.e. such limitation period is three years.
8. The Special Bench in the aforesaid decision held inter alia that the proceedings referred to in section 141 are not confined to only original proceedings. The proceedings under section 141 are of wider amplitude. The Special Bench further held that an explanation has been added to section 141 by the Amendment Act of 1976 and it is immaterial whether the proceedings initiated on the basis of an application under Order 9 pertakes the character of a substantive right or procedural matter.
9. Considering all aspects of the matter, in our view, in the instant case Article 137 of the Limitation applies and not Article 122.
10. Learned Advocate for the respondent has relied upon a decision of the Supreme Court in the case of Sold Dutta v. T.M. & M.C (P) Ltd. . In support of his contention that the appellant being a limited company cannot rely on its lawyer’s default and the same should not be any ground for restoring an application dismissed for default.
11. In the aforesaid decision, the respondent-company took plea that the company was advised by the Advocate who was entrusted with the case not to appear at the time of hearing. It may be noted that the suit was posted for final hearing on June 9, 1988. It may also be noted that the ejectment suit was on the ground of default in paying rent and also on the ground that the such premises are required for his own use and occupation. The suit was posted for final hearing on June 9, 1988–seven years after its institution. On an earlier occasion, the defendant made two interlocutory applications, one under Order 14 Rule 5 and the other under Order 6 Rule 16. On May 19, 1988 the City Civil Court had passed an order on the said applications observing that the said applications shall be considered at the final hearing of the suit. The company took the plea that the Advocate advised the company that it is not necessary for the defendant-company to be present at the hearing of the suit of June 9, 1988 and thereafter till the applications filed by him under Order 14 Rule 5 and Order 6 Rule 16 are disposed of. However, on June 9, 1988 the Advocate for the defendant prayed for an adjournment till the next day. It was adjourned accordingly. On June 10, 1988 neither the Advocate for the defendant nor the defendant appeared, with the result the suit was taken up exparte. Hearing of the suit was commenced and concluded on June 11, 1988. An application was made on behalf of the defendant stating the circumstances in which his Advocate had to retire from the case. This application, however, contained no prayer
whatsoever: The suit was decreed exparte on June 13, 1988. Thereafter the defendant filed the application to set aside the exparte decree. The defendant referred to the fact of his filing two interlocutory applications as aforesaid, the order of the court thereon passed on May 19, 1988 and then stated due to the advice of the learned Advocate on record that your petitioner need not be present at the hearing of the suit on June 9, 1988 and thereafter till the disposal of the application filed under Order 6 Rule 16 and Order 14 Rule 5 read with section 151 of the Code of Civil Procedure in the above suit,” the defendant did not appear before the court. It was stated that Mr. Ravindran the Principal Officer of the defendant-company was out of town on that date. It was submitted that because the defendant had acted on the basis of the advice given by the Advocate-on-record of the defendant, there was sufficient cause to set aside the exparte decree within the meaning of Order 9 Rule 13 CPC. The trial court dismissed the said application against which an appeal was preferred by the defendant to the Calcutta High Court The appeal was heard by a Division Bench and judgment pronounced in open court on July 8, 1991 dismissing the appeal. However, it appears, before the Judgment was signed by the learned Judges constituting the Division Bench, an application was moved by the defendant for alteration or modification and/or reconsideration of the said judgment mainly on the ground that the defendants’ counsel could not bring to the notice of the Division Bench the decision of this court in Rafiq v. Munshilal and that the said decision clearly supports the defendants’ case. The counsel for the plaintiff opposed the said request. He submitted that once the judgment was pronounced in open court, it was final and that matter cannot be reopened Just because a relevant decision was not brought to the notice of the court. After hearing the counsel for both the parties, the Division Bench reopened the appeal on the ground that “technicalities should to be allowed to stand in the way of doing Justice to the parties”. The Bench observed that when they disposed of the appeal, their attention was not invited to the decision of this court in Raflq’s case (supra) and that in view of the said Judgment they were inclined to reopen the matter. The Division Bench was of the opinion that “after a judgment is delivered by the High Court ignoring the decision of the Supreme Court or in disobedience of a clear Judgment of the Supreme Court, it would be treated as non-est and absolutely without Jurisdiction….. when our attention has been drawn that our judgment is per incurlam, it is our duty to apply this decision and to hold that our judgment was wrong and, liable to be recalled.” Accordingly, the Division Bench heard the counsel for the parties and by its Judgment and order dated March 3, 1992 allowed the appeal mainly relying upon the decision of this in Rafiq’s case.
12. The Supreme Court while disposing of the appeal held that the decision in Rafiq’s case (supra) cannot have any application to the facts and circumstances of the case.
13. The Supreme Court also observed that since the Judgment under appeal is exclusively based on the decision of the Supreme Court in Raflq’s case, it is necessary to ascertain the same properly and accordingly noted in observation as under :–
“The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates.
the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court’s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but harely useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter, when it is listed. It is not part of his Job.”
14. The Supreme Court also took note of the practice prevailing in the High Court of Allahabad among the lawyers to remain absent when they did not like a particular Bench and that the absence of the appellants advocate in the High Court was in accordance with the said practice, which should not be encouraged and the Supreme Court took the view such deliberate iv action on the part of the lawyer cannot be encouraged.
15. In the instant case, however, although the appellant is the same company the case made out that the appellant’s Advocate fell ill and could not appear, was not controverted by filing any affidavit-in-opposition. The other allegations contained in the petition were also not controverted as already noted by filing an affidavit-in-opposition by the respondent and as such their appears to be no dispute with regard to the same and the other allegations made in the petition as more particularly dealt with hereinafter.
16. We are of the view in the instant case that the facts and circumstances are entirely different and the said principles laid down in the said decision in Salil Dutta’s case (supra) cannot apply.
17. In our view, the aforesaid decision was rendered by the Supreme Court on entirely different facts and circumstances and the same is not applicable to the facts of the present case. In the said decision, the Supreme Court held on facts that the case of lawyer’s default was not made out. The said decision is not an authority for the proposition that a party cannot plead the lawyer’s default as ground for restoration of an application dismissed for default. On the question of limitation of the appeal the respondent has not pressed the same.
18. It has been argued on behalf of the respondent that the provisions of the Limitation Act have to be read in conjunction with the provisions of the Civil Procedure Code and since the Limitation Act is procedural law, by reason of section 141 of the Civil Procedure Code read with Article 122 of the Schedule to the Limitation Act, the said Article would apply in respect of application for restoration on a miscellaneous proceeding as well.
19. In our view, however, the Limitation Act cannot be said to a mere procedural law since it also affects the substantive rights of the parties.
20. “There are two aspects of the statute of limitation-one concerns with the extinguishment of the right if a claim or action is not commenced within a particular time and the other merely bars the claim without affecting the right which either remains merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. Where a statute prescribing the limitation extinguishes the right it affects substantive rights while that which purely pertains to the commencement of action without touching the right is said to be procedural. Where a question of limitation arises, the distinction between the so-called substantive and procedural statutes of limitation may not prove to be a determining factor but what has to be considered is whether the statute extinguishes merely the remedy or extinguishes the substantive right as well as the remedy. Instead of generalising on a principle the safest course would be to examine each case on its own facts and circumstances and determine for instance, whether it affects substantive rights and extinguishes them or whether it merely concerns a procedural rule only dealing with remedies or whether the intendment to prescribe limitation is discernible from the scheme of the Act or is inconsistent with the rule making power etc.
21. In this connection Judgment and decision in the case of M/s. Bharat Barrel & Drum Mfg. Co. Pvt. Ltd. & another v. The Employees’ State insurance Corporation may be taken note of. In the aforesaid decision the question as to if the Limitation Act is procedural law or substantive law has been discussed at length.
22. The Supreme Court in the aforesaid decision considered the said question and observed in paragraph 6 at page 1937 of the said report inter alia as follows :–
“If it is a part of the procedure whether the entire topic is covered by it or only a part of it and if so what part of it and the tests for ascertaining them. The law of limitation appertains to remedies because the rule is that claims in respect of rights cannot be entertained if not commences within the time prescribed by the statute in respect of that right. Apart from Legislative action prescribing the time, there is no period of limitation recognised under the general law and therefore any time fixed by the statute is necessarily to be arbitrary. A statute prescribing limitation however does not confer a right of action nor speaking generally does it confer on a person a right to relief which has been barred by efflux of time prescribed by the law. The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him : secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a court of law. The principle which forms the basis of this rule is expressed in the maxim vigilantibus non dormlentibus. Jura subvenlunt (the laws give help to those who are watchful and not to those who sleep). Therefore, the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims. While this is
so there are two aspects of the statutes of limitation the one concerns the extinguishment of the right if a claim or action is not commenced with a particular time and the other merely bars the claim without affecting the right which either remain merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. Where a statute prescribing the limitation extinguishes the right it affects substantive rights while that which purely pertains to the commencement of action without touching the right is said to be procedural.”
23. Accordingly, in our view, the contention of Mr. Mitra that Act is a mere procedural law cannot be accepted.
The only consideration now, therefore, is if a ground has been made out for restoration and/or recalling of the order passed dismissing the application under section 17(2) of the West Bengal Premises Tenancy Act. It appears on perusal of the said order dismissing the application for restoration that the plaintiff did not file her affidavit-in-opposition within the time allowed nor any extension was obtained. The main ground made out for restoration was that Mr. K.P. Tiwari Advocate on record for the petitioner fell seriously ill towards the end of July, 1984 and was confined to bed for over 7 days and did not come to court for the entire first weeks of August, 1984 and did not come to court regularly even thereafter. The said application appeared in the list of A.M. Pal, J as he then was, and on or about 3.8.84 the same was dismissed as no one on behalf of the appellant was present. The petitioner had no knowledge of the circumstances under which, it has been alleged, the matter appeared in the list and dismissed since the Advocate-on-record of the petitioner was ill and did not come to court on that date and the petitioner was also not aware of the dismissal of the said application until a notice of motion dated 15.4.85 taken out on behalf of the plaintiff was served on the petitioner wherein the plaintiff was inter alia adking for striking out the defence of the petitioner against delivery of possession.
24. The case made out by the appellant before the learned single Judge was that the said application under section 17(2) of the said Act was not followed up by the petitioner since the plaintiff had been continuously negotiating with the petitioner for an amicable settlement out of the court. It may also be noted that the petitioner has been depositing the rent in court regularly, month by month and its bonaffdes in that regard are unimpeachable.
25. Learned Advocate for the appellant therefore argued before the learned single Judge that there was sufficient cause for the appellant for not appearing before A.M. Pal, J on 3.8.84 when the said application was dismissed. The allegations made in the petition, however, has not been controverted by filing any affidavit-in-opposition before the learned single Judge and the contention of the appellant that the appellant had no knowledge of the circumstances under which the matter appeared in the list and was dismissed since Advocate-on-record of the petitioner fell ill and did not come to court on that date and the appellant was also not aware of the dismissal of the said application until a notice of motion was taken dated 15.4.85 on behalf of the plaintiff/respondent was served on the
appellant for striking out defence against the delivery of possession also was not denied by filing any affidavit-in opposition. The aforesaid facts, therefore, remained uncontroverted under such circumstances.
26. The appellant, in our view, made out a sufficient cause for restoration and/or recalling of the order dated 3.8.84. The objection raised by the respondent. In our view, cannot be sustained and accordingly the appeal is allowed. The order dismissing the application for restoration and the recalling of the order dated 3.8.84 is set aside and/or recalled.
27. Appellant, however will pay the costs of the appeal assessed at 1000 Gms. within 4 weeks from date, in default the appeal stands dismissed.
28. Since the suit is an old one and it has been mentioned to us that the appellant is an old and handicapped lady, it is expected that the pending proceedings, the application under section 17(2) which is restored to file, will be disposed of expeditiously and the learned single Judge will hear out the matter as early as possible subject however to his convenience.
A. Kabir, J.–I agree.
29. Appeal allowed.
