Momtazuddin and another Vs. Yakub Ali, 46 DLR (AD) (1994) 13

Case No: Civil Appeal No. 27 of 1993

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,,

Citation: 46 DLR (AD) (1994) 13

Case Year: 1994

Appellant: Momtazuddin and another

Respondent: Yakub Ali

Subject: Limitation,

Delivery Date: 1993-5-27


Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed, CJ.
MH Rahman, J.
ATM Afzal, J.
Latifur Rahman, J.
 
Momtazuddin and another
………………….Defendant-Appellants
Vs.
Yakub Ali
…. .......................Plaintiff-Respondent
 
Judgment
May 27th, 1993
 
Limitation Act (IX of 1908)
Section 5
The practice of admitting a time-barred appeal “subject to objection at the hearing” is not a sound practice and must be discouraged except in marginal cases. When the delay is long and requires to be explained with reference to facts which are likely to be disputed, the Court must take the exercise under section 5 of the Limitation Act before admitting the appeal with notice to the respondent.
 
Cases Referred to-
Chowdhury Saifuddin Ahmed Vs. Shamsuddin 40 DLR 10; Krishnasami Vs. Ramasami 41 Madras 412 (PC) & Sunderabai Vs. Collector 43 Bom 376 (PC).
 
Lawyers Involved:
Khandker Mahbubuddin Ahmed, Senior Advocate (Habibul Islam Bhuiyan, Senior Advocate with him) instructed by Md. Sajjadul Huq, Advocate-on-Record-For the Appellants.
Dr. Kamal Hossain Senior Advocate (Khademul Islam Chowdhury, Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate-For the Respondent.
 
Civil Appeal No. 27 of 1993.
(From the Judgment and Order dated 9 December, 1992 passed by the High Court Division, Dhaka in Civil Revision No. 2112 of 1992.)
 
JUDGMENT
ATM Afzal J.
 
This appeal by leave is from judgment and order dated 9 December, 1992 passed by a Single Judge of the High Court Division in revision, Civil Revision No. 2112 of 1992, making the Rule absolute in part and setting aside the order dated 9.6.92 passed by the District Judge, Dhaka in Title Appeal No. 218 of 1992 admitting the same and staying all further proceedings of Title Execution Case No. 33 of 1987 of the 3rd Court of Subordinate Judge, Dhaka.
 
2. Material facts of the case are, that the appellants were defendants in a suit for specific performance of contract, Title Suit No. 120 of 1980, in the 1st Court of Subordinate Judge, Dhaka brought by the respondent and others which was decreed ex parte on 26.1.81 and the decree was drawn up on 13.7.81. Alleging that the summons were fraudulently suppressed in the suit and that the appellants came to know about the said decree and the execution case, Title Execution case No. 33 of 1987, for the first time on 15.5.92 when Police went to the land for giving delivery of possession, they, inter alia, filed Title Appeal No. 218 of 1992 against the said ex parte decree before the District Judge, Dhaka on 9.6.92. The appeal was admitted and the execution case stayed by an order passed on the same day.
 
3. On 29.6.92 the respondent filed an application for setting aside the above order on the ground, amongst others, that the appeal being prima facie barred by 10 years 301 days and there having been no application under section 5 of the Limitation Act for condonation of delay, the order admit­ting the appeal was illegal and without jurisdiction. The appellants opposed the application. The learned District Judge by his order dated 14.7.92 rejected the application holding, inter alia, that "the appellants in their Memo of Appeal have taken the ground that there was suppression of summons and they had no knowledge about the ex parte decree before 7.6.92. The appellants not being aware of the decree before 7.6.92 the question of filing an application under section 5 of the Limitation Act explaining each day's delay does not arise. The question whether the appellants had knowledge about the decree is a matter for investigation at the time of hearing of the appeal. If at the time of hearing the appellants by reference to papers of the lower court records can satisfy the suppression of summons and absence of knowledge about the ex parte decree before the date alleged by them they will entitle themselves to relief and on their failure to do so they will go out of court. On the face of allegation about non-service of summons I do not think that an order was required to be passed condoning the delay before admission of the appeal".
 
4. The respondent took a revision against orders dated 9.6.92 and 14.7.92 as above and a Single Judge of the High Court Division, Dhaka, as already stated, passed the impugned judgment and order therein. It was observed, inter alia, in the judgment
 
"In the present case no application for condonation of delay of 10 years 301 days has been filed before the court, no effort appears to have been made for explaining such delay. The court is required to apply its judicial mind to the facts and circumstances of the case and thereafter satisfy itself as to its reasonableness before the delay is condoned. In these circumstances, the learned District Judge appears to have committed a serious error of law by admitting the appeal and staying the execution case."
 
5. Leave was granted to consider whether the learned Judge acted rightly in setting aside the order dated 9.6.92 of the District Judge altogether thereby throwing the appeal of the appellants completely overboard.
 
6. Khandker Mahbubuddin Ahmed, learned Advocate for the appellants, firstly, submitted that the learned Judge was in error in thinking that an application was required to be filed under section 5 of the Limitation Act compulsorily without which delay cannot be condoned. Secondly, the learned Judge erred in holding that no effort was made by the appellants for explaining the long delay. Mr. Ahmed submitted that it was clearly stated in the memoran­dum of appeal that due to fraudulent suppression of summons the appellants had no knowledge of the ex parte decree and they came to know about the same for the first time on 15.5.92. This and other facts stated in the memo of appeal attract the application of section 5 of the Limitation Act and it was wrong to say that no effort was made to explain the delay. Mr. Ahmed submitted that the order admitting the appeal ought not to have been set aside on the ground that the delay in filing the appeal was not condoned before hand because in the subsequent order dated 14.7.92 the learned District Judge kept the question of limitation open by observing that if the appellants cannot satisfy the Court at the hearing of the appeal about the suppression of summons and absence of knowledge about the ex parte decree before the date alleged by them they will go out of court.
 
7. Dr. Kamal Hossain, learned Advocate for the respondent, however, supported the impugned order submitting that the appeal which was long time‑barred could not be admitted without the Court being satisfied first as required under section 5 of the Limitation Act that the appellants had sufficient cause for not preferring the appeal within time. He submitted that the learned District Judge illegally lost sight of the fact that‑ a right had accrued to the respondent after the expiry of the period of limitation and the appeal could not be admitted to His prejudice without hearing him and without being satisfied as above. Dr. Hossain referred to some observations of the learned District Judge in his order dated 14.7.92 and submitted that the same betrayed a complete lack of realization as to the purpose of section 5 of the Limitation Act.
 
8. The limitation for filing the appeal in the present case before the District Judge was thirty days from the date of the decree (Art 152 Limitation Act.) Admittedly the appeal was filed on 9.6.92 more than (eleven) years after the decree was passed on 26‑1.81. The learned District Judge himself noticed in his order dated 9.6.92 that the appeal was barred by 10 years 301 days but even then he admitted it. Admittedly the appellants did not file any application for condonation of delay under section 5 of the Limitation Act except making some statement in the memorandum of appeal that summons were suppressed and they had no knowledge about the ex parte decree before 15.5.92.
 
9. It must be said that the learned District Judge acted illegally in admitting the appeal even after noticing that it was long barred by limitation. Section 5 of the Limitation Act provides that an appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfied the Court that he had sufficient cause for not preferring the appeal within such period. Order XLI rule 9(l) of the Code of Civil Procedure provides that where a memorandum of appeal is admitted, the Appellate Court or the proper Officer of that Court shall endorse thereof  the date of presentation and shall register the appeal in a book to be kept for the purpose. For admitting a time‑barred appeal, the court has first of all to be satisfied that there was sufficient cause for not filing the appeal in time. The appellant has to make out a case of sufficient cause by filing an application, called a petition for condonation of delay. Mr. Ahmed argued that it is not required by section 5 of the Limitation Act or by any other law that a separate application must be filed because necessary statement may be made in the memo of appeal for the purpose as was done in the present case. He relied upon Chowdhury Saifuddin Ahmed Vs. Shamsuddin 46 DLR 10 wherein a Division Bench held that it is not absolutely essential that a formal application must be filed as a matter of  inflexible rule on pain of dismissal of the main application itself (in that case it was an application under Order IX rule 13 CPC. This statement was, however, qualified by prefacing that it is desirable that in all cases where a party who wishes to take advantage of section 5 of the Limitation Act ought to file a separate application for condonation of delay. While we approve of the view taken in that case, we wish to lay stress that it is a rule sanctioned by expediency and established by practice that a separate application is necessary to be filed for condonation of delay. Statements made in the memo of appeal or 'in the main petition setting out facts for condonation of delay cannot be strictly looked into because a memo/petition can only be admitted after condonation of delay.
 
10. The learned District Judge gave no consideration to the question of limitation before, admitting the appeal which was quite illegal. He was required to be satisfied that there was sufficient cause for the delay and this determination was required to be made after giving notice to the respondent. Nothing was done by him, rather he observed quite wrongly in his order dated 14.7.92 that on the face of allegation about non-service of summons he was not required to pass any order condoning the delay before admission of the appeal.
 
11. A practice has grown of admitting a time‑barred appeal "subject to objection at the hearing". Even this was not done in the present case. This practice is surely not a sound one and must be discouraged except in marginal cases. When the delay is long and requires to be explained with reference to facts which are likely to be disputed, the court must make the exercise under section 5 of the Limitation Act before admitting the appeal with notice to respondent.                     
 
12. The Judicial Committee in Krishnasami Vs. Ramasami, 41 Madras 412 (PC) and Sunderabai Vs. Collector, 43 Bombay 376 (PC) impressed on the courts in India the urgent expediency of adopting a procedure which should secure at the stage of admission the final determination (after due notice to all parties) of any question of limitation affecting the competency of an appeal. As to the practice of hearing objection as to limitation at the hearing of the appeal, it was observed in the former case that "while this procedure may have the sanction of usage, it is manifestly open to grave objection. It may, as in this case, lead to a needless expenditure of money and an unprofitable waste of time, and thus create elements of considerable embarrassment when the court comes to decide on the question of delay".
 
13. In the latter case their Lordships suggested that when a memorandum of appeal is presented beyond the period of limitation, the proper order which a judge should endorse upon it would be to the following effect: "Presented for admission on the (date when the memorandum of appeal was handed into the office of his court). Let notice go to the respondents (date of order)" We are of the opinion that the view taken and the procedure laid down by the Judicial Committee for dealing with time‑barred appeals remain very much relevant and valid even to this day and requires to be followed.
 
14. However, the Privy Council also observed in the former case 41 Madras 412 (PC) that an ex parte order admitting a time barred appeal is subject to reconsideration at the hearing of the appeal at the respondent's instance because such an order made in the absence of the respondent and without notice to him purports to deprive him of a valuable right, for, it put in peril the finality of the decision in his favour and if he is precluded from questioning its propriety it would amount to a denial of justice. "It must, therefore, in common fairness be regarded", their Lordships said, "a tacit term of an order (admitting time‑barred appeal ex parte) that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the courts in India."
 
15. The order of the learned District Judge admitting the time barred appeal was apparently bad but the learned Judge of the High Court Division instead of setting aside the same altogether could have maintained it with a rider, following the above dicta, that the question of limitation would be decided at the hearing of the appeal.
 
16. The facts of the present case are such that the success of the appellants both on ground of limitation as well as on merit depends upon the determination of the same fact i.e. whether summons were served upon them in Title Suit No. 120 of 1980 and whether they came to know about the ex parte decree for the first time on 15.5.92 as alleged. In view of the special facts of the case and the aforesaid principle that the question of limitation is subject to reconsideration at the instance of respondent in case of an ex parte order admitting a time‑barred appeal, we propose to save the order of admission of the appeal with a rider which in fact the High Court Division should have done.
 
In the result, therefore, the appeal is allowed without any order as to cost and the impugned judgment and order are set aside. The question of limitation will remain open for decision at the hearing of the appeal and the respondent is free to take all legitimate objections.
 
Ed.