AJAY GUPTA Vs. RAJU @ RAJENDRA SINGH YADAV - Limitation

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 5862 of 2016, Judgment Date: Jul 05, 2016

                                                              REPORTABLE
 

                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                      CIVIL APPEAL NO.   5862   OF 2016
                (Arising out of S.L.P.(C) No. 27853 of 2012)


AJAY GUPTA                                     ...  APPELLANT (S)

                                   VERSUS

RAJU @ RAJENDRA SINGH YADAV                    ... RESPONDENT (S)


                           J  U  D  G  M  E  N  T

KURIAN, J.:


Leave granted.


The impugned judgment on limitation to file  a  suit  gives  an  interesting
reading on reasoning:

“Learned trial court has  vide  impugned  order,  disposed  the  application
filed under Order 7 Rule 11 by the defendant on the ground  that  01.01.2011
was non-working Saturday, therefore the Suit  was  filed  on  03.01.2011  is
within limitation. Although, there is no bar for  filing  of  Suit  on  non-
working Saturday but if the Suit is not filed on non-working Saturday  under
the assumption that it is non-working Saturday  then  the  mistake  of  non-
filing is a bonafide mistake, so the mistake is taken as bonafide mistake.”

 It is  not  in  dispute  that  the  last  date  for  filing  the  suit  was
31.12.2010, the last day of winter vacation  for  court.  01.01.2011  was  a
Saturday, and even according to the High Court, it is  non-working  Saturday
for the Judges for enabling them to write judgments and regular  hearing  of
cases is not heard on a  non-working  Saturday.  Obviously,  it  was  not  a
holiday for the Registry and there is no question of any  confusion,  though
such confusion also cannot save limitation to file a suit.

Section 4 of The Limitation Act,  1963  (hereinafter  referred  to  as  ‘the
Act’), dealing with “Expiry of prescribed period when court is  closed”,  no
doubt, applies to suits as well, and in case the prescribed period  for  any
suit, appeal or application expires on a day when the court is  closed,  the
suit, appeal or application may be instituted, preferred or made on the  day
when the court reopens.

The explanation under Section 4 of the Act also makes it clear that:
“Explanation.-A court shall be deemed to be closed on  any  day  within  the
meaning of this section if during any part of its normal  working  hours  it
remains closed on that day.”

There is no case for anybody that even for part of  the  day,  the  Registry
was closed. But Section  5  of  the  Act  which  deals  with  “Extension  of
prescribed  period  in  certain  cases”,  applies   only   to   appeals   or
applications and not to suits. Therefore, no court or  tribunal  can  extend
the period of limitation for filing a suit. Even if any  cause,  beyond  the
control of the plaintiff is shown  also,  the  only  extension  is  what  is
permitted under Section  4  of  the  Act,  the  period  coming  under  court
holiday.

Thus, both the trial court and the High Court have  gravely  gone  wrong  on
the first principles on the  law  of  Limitation.  Therefore,  the  impugned
order is set aside. The application filed by the appellant under  Order  VII
Rule 11 of The Code of Civil Procedure, 1908 is allowed. Recovery  Suit  No.
1/2011 on the file of the ADJ, Gwalior, Madhya Pradesh is dismissed.

The appeal is allowed as above. There shall be no order as to costs.


                                  ........................................J.
                                                       (KURIAN JOSEPH)


                                                        ......………………………………J.
                                                (ROHINTON FALI NARIMAN)
New Delhi;
July 5, 2016.