Dismissed

Mohinder Singh v. Aditya

Himachal Pradesh HC8 May 2013CMPMO/326/2012

Case brief

AI extract

What is this about?

A special leave petition under Article 227 challenging a trial court order allowing a belated review application under Section 114 CPC. The High Court held that the applicant's application contained sufficient circumstances for condoning delay, no separate Section 5 application was needed, and the trial court committed no perversity.

What did the court decide?

Petition under Article 227 dismissed; pending applications also dismissed.

Mohinder Singh Vs Aditya — Civil Procedure and Limitation | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 326 of 2012.

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Judgement reserved on: 29.4.2013

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Date of decision: 8.5.2013

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Sh. Mohinder Singh …..Petitioner

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Vs.

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Aditya and others. .....Respondents

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Coram

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The Hon’ble Mr. Justice Kuldip Singh, Judge.

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Whether approved for reporting?¹ No

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For the petitioner : Mr. Arvind Sharma, Advocate For the Respondents : Mr. Mehar Chand, Advocate, vice Mr. Rajeev Sood, Advocate, for respondents No.1.

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____________________________________________

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Kuldip Singh, J

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This petition under Article 227 of the Constitution of India is directed against the order dated 19.9.2012 passed by learned Civil Judge( Senior Division) in Case No.124-1 of 10/03.

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The case of the petitioner is that respondent No.1 has filed a suit for declaration that he and proforma respondents are owners in possession of suit land, more specifically described in the plaint. The entries showing Hakam as absolute owner in possession is wrong, illegal.

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The respondent No.1 had filed the suit through his mother,

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Whether the reporters of the local papers may be allowed to see the JudgmentYes

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claiming himself to be a minor. The issues were framed on 27.8.2003. The respondent No.1 failed to adduce even a single witness and his evidence was closed by the Court on 18.12.2004.

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On 18.12.2004 itself an application under Order 32 Rules 9,10,11 read with section 151 CPC was filed by respondent No.1. The respondent No.1 moved another application under Order 32 rule 12 CPC on 23.10.2006 and pleaded that he had attained majority on 12.8.2006, no reply was filed by the petitioner.

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The respondent No.1 moved another application under Section 114 CPC on 13.11.2007, for reviewing order dated 18.12.2004. This application was contested but learned trial Court on 19.9.2012 allowed the application and reviewed the order dated 18.12.2004. The application under Section 114 CPC was time barred and no application for condonation of delay in filing the said application was filed. The Court below has misconstrued, misinterpreted the material on record and has mechanically allowed the application under Section 114 CPC vide order dated 19.9.2012.

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I have heard the learned counsel for the parties. The petitioner has placed on record some copies of orders passed by learned trial Court from time to time. On 18.12.2004 the evidence of plaintiff was closed by the order of the Court. It has also been observed in the order dated

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18.12.2004 that an application under Order 32 rules 9,10,11 read with Section 151 CPC has been filed. The order dated 23.10.2006 indicates that plaintiff filed another application under Order 32 rule 12 read with Section 151 CPC. The trial Court vide order dated 3.10.2007 (wrongly mentioned 3.10.2006) allowed the application under Order 32 rule 12 CPC. The mother and natural guardian of plaintiff was discharged. In the said order, it was observed that date of birth of the petitioner was 12.8.1988. The plaintiff has attained majority. The application under Order 32 rules, 9,10,11 CPC has become infructuous, hence dismissed, even though on 7.9.2006, this application was permitted to be withdrawn. On 13.11.2007, plaintiff moved an application under Section 114 read with Section 151 CPC for reviewing the order dated 18.12.2004. This application has been allowed by learned trial Court on 19.9.2012.

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It has been contended on behalf of the petitioner that repeated opportunities were given to the plaintiff by learned trial Court to adduce evidence, when he failed then learned trial Court closed his evidence on 18.12.2004. The application under Section 114 read with Section 151 CPC moved by plaintiff on 13.11.2007 is highly belated. There was no prayer for condonation of delay in filing the application. Article 124 of the Limitation Act, 1963 provides limitation of 30 days for review. The trial Court wrongly reviewed the order dated 18.12.2004.

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The respondent No.1 in the application under Section 114 CPC has averred that mother and natural guardian of the plaintiff had failed to take interest in the suit. She has failed to take steps. The respondent No.1 moved an application under Order 32 rules 9,10,11 CPC, for removal of the guardian of the plaintiff and also for stay of the proceedings till new guardian was appointed. The Court instead of passing an order on the said application closed the evidence of the plaintiff who was minor at that time. The guardian of respondent No.1 had failed to protect the interest of respondent No.1 during his minority, it has caused serious prejudice to respondent No.1. It has been stated that the application is within limitation, in alternative delay, if any, may be condoned. This application was opposed but the learned trial Court allowed the application and reviewed the order dated 18.12.2004.

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It has come on record that on 18.12.2004, respondent No.1 had moved an application under Order 32 rules 9,10,11, for removal of his guardian. No doubt, some opportunities were given to respondent No.1, who is plaintiff to adduce evidence but simultaneously, it cannot be ignored that plaintiff was minor on 18.12.2004. The learned trial Court on 18.12.2004 instead of passing appropriate order on application under Order 32 rules 9,10,11 CPC of the respondent No.1, closed the evidence of respondent No.1. In the meantime, respondent No.1 attained majority. He

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moved another application under Order 32 rule 12 CPC. In the order dated 3.10.2007, the learned trial Court has observed that date of birth of respondent No.1 is 12.8.1988. Thus, respondent No.1 attained majority on 12.8.2006. The learned trial Court on 3.10.2007 has allowed the application under Order 32 rule 12 CPC of respondent No.1. The respondent No.1 moved application under Section 114 read with Section 151 CPC on 13.11.2007 after about 20 days when his application under Order 32 rule 12 CPC was allowed on 3.10.2007.

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The grievance of the petitioner is that petitioner has not filed separate application under Section 5 of the Limitation Act, for condonation of delay. In Mussadi and others vs. Jai Gopal and others 1994(1) S.L.J.90 , it has been held as follows:-

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“ 16. Even the other and more technical plea raised by the learned counsel for the respondents that separate applications ought to have been made, one under Order 22 Rule 9 of the Code of Civil Procedure and the other under Section 5 of the Limitation Act cannot be accepted for the reasons that in case an application is made praying for an appropriate relief by stating therein the reasons for not approaching the Court within the period of limitation and the facts as stated therein make out a sufficient cause for not approaching the Court in time, the prayer for condoning the delay is implied and it is not necessary that the applications should also bear a caption having been under Section 5 of the Limitation Act.”

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The ratio of Mussadi (supra) is applicable in the facts and circumstances of the case. In Section 114 CPC the respondent No.1 has narrated the circumstances leading to the closure of his evidence and moving application for reviewing the order dated 18.12.2004, with prayer to condone delay. In view of Mussadi (supra) no separate application under Section 5 of the Limitation Act was required for condonation of delay. The respondent No.1 moved an application under Section 114 CPC on 13.11.2007 within 20 days from 3.10.2007. The trial Court has rightly appreciated the material on record. There is no error of jurisdiction. The scope of petition under Article 227 of the Constitution of India is limited. There is no perversity in the impugned order.

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In view of above, there is no merit in the petition and therefore, same is dismissed, so also the pending applications.

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May 8, 2013 ( Kuldip Singh), ( sks) Judge

Mohinder Singh v. Aditya

Case brief

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Mohinder Singh v. Aditya

Case brief

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