KAKA RAM Vs. PRABHA SHANKER
HIGH COURT OF JAMMU AND KASHMIR
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A.M.MIR, J. -
(1.) THIS Letters Patent Appeal has been directed against a judgment of the learned Single Judge passed in C. M. P. No. 44/82 on 21.7.1984.
The petition was filed by the appellant before the learned Single Bench
in terms of order 41 Rule 19 of the Code of Civil Procedure, for
re -admission of the appeal which was dismissed in default on 24.2.1981.
The petition was filed on 10.3.1982. Obviously the C. M. P. was much
belated. It was filed after expiry of more than a year, while as under
Art. 168 of the Limitation Act the period prescribed for moving such an
application is 30 days from the date of dismissal.
(2.) APPELLANTS case is that he did not have the knowledge of the dismissal upto 6.3.1982. It, according to the appellant, was on 6.3.1982
that he got the knowledge of the dismissal. Therefore", he pleads that
limitation of thirty days, as prescribed by Art. 168 of the Limitation
Act, will run from 6.3.1982.
(3.) LEARNED Single Bench has rejected this plea and on a plain construction of Art. 168 held that period of limitation would run from
24.2.1981, when the matter was dismissed and not from 6.3.1982 when the appellant allegedly assumed knowledge of the dismissal. Learned Single
Bench has advanced following two reasons for dismissal of the
i) That Art. 168 of the Limitation Act provides for thirty days limitation from the date of dismissal and not from the date of knowledge; ii) That even assuming he got knowledge on 6.3.1982, the petition has been filed on 10.3.1982. No explanation tenered for the delay from 6th to 10th March, 1982.
Mr. Kohli, appearing for the appellant, has strenuously tried to convass that period of limitation, in a case where the order was
passed without notice to a party, would run from the date of knowledge to
such party. In this behalf he has relied upon a judgment delivered by the
Apex Court in case titled Madanlal vs. State of U. P and others, reported
in AIR 1975 SC 2085. This case was arising out of the Forest Act. Their
Lordships held that the date of order in the case would mean knowledge of
the order, where the order was passed without notice to the appellant.
Reliance was placed by the Apex Court on AIR 1961 SC 1500. In this case
the dispute was arising out of Land Acquisition Act, where an award was
published at the back of the interested persons. The apex court held that
where the person applying for condonation of delay had no knowledge of
dismissal, the period of limitation would be counted from the date he
assumes knowledge. Learned Single Bench has drawn a bold distinction
between the two judgments of the Supreme Court referred to above and the
case before him. He has held that in the present case it will be the date
of dismissal from where the period of limitation will have to be counted
and he has held so on the strict construction of Art. 168 of the
Limitation Act. He has found this case to be governed by a judgment
passed by the Supreme Court in Municipal Board Vs. State Transport,
reported in AIR 1965 SC 458. In this case the express law laid down by
the Supreme Court is that whenever a case is listed before a court for a
particular date and on the fixed date, or any other date to which hearing
may be adjourned, the appellant does not appear, the court may pass an
order of dismissal under sub -rule (2) of Rule 17 of Order 41 C. P. C.;
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