Case Note & Summary
The present Civil Revision Application was filed by the applicants (original defendants) challenging the judgment and order dated 04.05.2022 passed by the learned Civil Judge Senior Division, Thane in Civil Misc. Application No.1473 of 2021 below Exhibit-1. The Civil Misc. Application was filed by Respondent No.1 (original plaintiff) on 12.10.2021 for condonation of delay in filing a restoration application seeking to restore Special Civil Suit No.269 of 2002, which was dismissed in default on 03.11.2011. The trial court allowed the application and condoned the delay. The applicants contended that the restoration application was barred by limitation under Article 137 of the Limitation Act, 1963, as it was filed beyond three years from the date of dismissal. The respondents argued that Article 137 does not apply to restoration applications, and the court has inherent power under Section 151 CPC to restore suits dismissed for default. The High Court held that the period of limitation for filing a restoration application is not governed by Article 137 of the Limitation Act, as such an application is not an 'application for which no period of limitation is provided elsewhere' in the Schedule. The court has inherent power under Section 151 CPC to restore a suit dismissed for default, and such application is not subject to the period of limitation under Article 137. The trial court's discretion to condone delay under Section 5 of the Limitation Act is wide and should not be interfered with in revision unless perverse or arbitrary. The High Court found no perversity or illegality in the impugned order and dismissed the revision application.
Headnote
A) Civil Procedure - Condonation of Delay - Restoration of Suit - Limitation Act, 1963, Article 137, Section 5; Code of Civil Procedure, 1908, Section 151 - The period of limitation for filing an application for restoration of a suit dismissed in default is not governed by Article 137 of the Limitation Act, 1963, as such an application is not an 'application for which no period of limitation is provided elsewhere' in the Schedule. The court has inherent power under Section 151 CPC to restore a suit dismissed for default, and such application is not subject to the period of limitation under Article 137. The trial court's discretion to condone delay under Section 5 of the Limitation Act is wide and should not be interfered with in revision unless perverse or arbitrary. (Paras 10-15)
B) Civil Procedure - Revision - Scope of Interference - Code of Civil Procedure, 1908, Section 115 - The High Court in revision under Section 115 CPC can interfere only if the subordinate court has exercised jurisdiction not vested in it, failed to exercise jurisdiction, or acted illegally or with material irregularity. The order condoning delay, being discretionary, is not amenable to revision unless it suffers from perversity or lack of jurisdiction. (Paras 16-20)
Issue of Consideration
Whether the period of limitation for filing an application for restoration of a suit dismissed in default is governed by Article 137 of the Limitation Act, 1963, and whether the trial court correctly condoned the delay of about 10 years in filing the restoration application.
Final Decision
The High Court dismissed the Civil Revision Application, upholding the order dated 04.05.2022 passed by the learned Civil Judge Senior Division, Thane in Civil Misc. Application No.1473 of 2021, which condoned the delay in filing the restoration application.
Law Points
- Condonation of delay
- Restoration of suit dismissed in default
- Limitation Act Article 137 applicability
- Inherent power of court
- Section 151 CPC
- Section 5 Limitation Act
Case Details
2022 LawText (BOM) (12) 73
Civil Revision Application No. 269 of 2022
Mr. Vineet Naik, Senior Advocate a/w. Mr. Sandesh Patil, Mr. Pawan Patil i/by Mr. Chintan Shah for Applicants; Mr. Anil Anturkar, Senior Advocate a/w. Mr. Vishwajeet Sawant i/by Mr. V.S. Kapse for Respondent No.1; Mr. Vijay Patil i/by Mr. Yogesh Patil for Respondent No.2/a and 2/b; Ms. Tanaya Goswami, AGP for Respondent Nos.3 – State and Respondent No.4; Mr. Rohit Sakhadeo i/by Sakhadeo & Associates for Respondent No.6 – CIDCO
Shri. Vijay Laxman Bhawe (since deceased through his legal heirs Smt. Pratibha Vijay Bhawe and Shri. Aniket Vijay Bhawe)
P & S Nirman Pvt. Ltd., Pravin Jamnadas Thakkar (deceased through Lrs Kunal Pravin Thakkar and Vidhi Pravin Thakkar), State of Maharashtra, Special Land Acquisition Officer, Union of India, City Industrial Development Corporation
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Nature of Litigation
Civil Revision Application challenging the order condoning delay in filing restoration application of a suit dismissed in default.
Remedy Sought
Applicants sought to set aside the order dated 04.05.2022 passed by the Civil Judge Senior Division, Thane in Civil Misc. Application No.1473 of 2021, which condoned the delay in filing the restoration application.
Filing Reason
The applicants contended that the restoration application was barred by limitation under Article 137 of the Limitation Act, 1963, as it was filed beyond three years from the date of dismissal of the suit.
Previous Decisions
Special Civil Suit No.269 of 2002 was dismissed in default on 03.11.2011. Respondent No.1 filed Civil Misc. Application No.1473 of 2021 on 12.10.2021 for condonation of delay in filing restoration application. The trial court allowed the application and condoned the delay.
Issues
Whether the period of limitation for filing an application for restoration of a suit dismissed in default is governed by Article 137 of the Limitation Act, 1963?
Whether the trial court correctly exercised its discretion in condoning the delay of about 10 years in filing the restoration application?
Submissions/Arguments
Applicants argued that the restoration application was barred by limitation under Article 137 of the Limitation Act, 1963, as it was filed beyond three years from the date of dismissal of the suit on 03.11.2011.
Respondent No.1 argued that Article 137 does not apply to restoration applications, and the court has inherent power under Section 151 CPC to restore suits dismissed for default, and the delay was sufficiently explained.
Ratio Decidendi
The period of limitation for filing an application for restoration of a suit dismissed in default is not governed by Article 137 of the Limitation Act, 1963, as such an application is not an 'application for which no period of limitation is provided elsewhere' in the Schedule. The court has inherent power under Section 151 CPC to restore a suit dismissed for default, and such application is not subject to the period of limitation under Article 137. The trial court's discretion to condone delay under Section 5 of the Limitation Act is wide and should not be interfered with in revision unless perverse or arbitrary.
Judgment Excerpts
The period of limitation for filing an application for restoration of a suit dismissed in default is not governed by Article 137 of the Limitation Act, 1963.
The court has inherent power under Section 151 CPC to restore a suit dismissed for default.
The trial court's discretion to condone delay under Section 5 of the Limitation Act is wide and should not be interfered with in revision unless perverse or arbitrary.
Procedural History
Special Civil Suit No.269 of 2002 was dismissed in default on 03.11.2011. On 12.10.2021, Respondent No.1 filed Civil Misc. Application No.1473 of 2021 for condonation of delay in filing restoration application. The trial court allowed the application on 04.05.2022. The applicants filed the present Civil Revision Application No.269 of 2022 challenging that order. The High Court dismissed the revision on 14.12.2022.
Acts & Sections
- Limitation Act, 1963: Article 137, Section 5
- Code of Civil Procedure, 1908: Section 151, Section 115
