UNION OF INDIA Vs. KAMAL KUMAR GOSWAMI
HIGH COURT OF CALCUTTA
UNION OF INDIA
KAMAL KUMAR GOSWAMI
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(1.) This is an extra-ordinary application by the respondent No. 1 who was the plaintiff in the suit. It is extra-ordinary for more than one reason. Firstly, because the applicant prays for an order that the memorandum of appeal be rejected or taken off the file and for dismissal of the appeal with costs on the ground that it is barred by limitation and further, and if necessary, for an order that the order or decision of the Deputy Registrar admitting the appeal be quashed or set aside and the memorandum of appeal be rejected. Secondly, because the applicant prays for dismissal of the appeal which is not ready for hearing, not even the paper book having been filed. Thirdly, because though the Rules of the Original Side of the Court, to which I will refer later in this judgment, enables him to canvass the bar of limitation at the hearing of the appeal he wants the question of limitation to be determined at this stage in exercise of the powers under Order 7, Rule 11 and Order 14, Rule 2 of the Code of Civil Procedure and, failing those Rules, in exercise of the inherent powers of the Court.
(2.) Mr. R. C. Deb, the counsel for the petitioner, contended that although the appellant's Solicitor put in a requisition for a certified copy of the decree on June 29, 1967, he took no further steps until March 26, 1969, when he furnished the requisite stamps. It was argued that the decree was ready for filing on November 6, 1968, and it was in fact filed on January 2, 1969, by the Solicitor for the respondent Nos.2 and 3. It was also contended that though the certified copy of the decree was ready for delivery to the appellant's Solicitor on May 2, 1969, the memorandum of appeal was not presented until May 28, 1969. In these facts, it was argued that since the appellant's Solicitor had failed to take any steps for filing the decree expeditiously and also to obtain certified copy of the decree, the appeal was filed beyond the period prescribed by the law of limitation and was therefore, barred by limitation and should be dismissed.
(3.) In support of his contention Mr. Deb invoked the provision of clause (d) of Rule 11 of Order 7 and Rule 2 of Order 14 of the Code of Civil Procedure and also the inherent power of this Court. Order 7, Rule 11 deals with rejection of plants on the four ground mentioned in clauses (a), (b), (c) and (d). Clause (d) provides that a plaint shall be rejected where suit appears from the statement in the plaint to be barred by any law. It is to be considered if this rule is attracted in this case and if there is any statement in the memorandum of appeal from which it appears that the appeal is barred by the law of limitation. From the allegations in the petition it appears that the bar of limitation is sought to be attracted by reason of the laches of the appellant is not taking diligently the steps which it should have taken for the filing of the decree and for obtaining a certified copy of the same. Assuming these allegations are correct, is the petitioner entitled to invoke clause (d) of Order 7, Rule 11 of the Code of Civil Procedure? In order to come within the ambit of clause (d) of that rule it must appear from the statements in the memorandum of appeal that the appeal is barred by the law of limitation. It is to be considered if there is any such statement in the memorandum of appeal in this case.;
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