Civil Suit No. 420 of 2009 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.6 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment dated 31st October, 2022 passed by the learned 2nd Additional District Judge, Balasore in R.F.A. No.13/224 of 2020/2016 confirming the judgment and decree dated 6th October, 2016 and 20th October, 2016 respectively passed by the learned Civil Judge (Senior Division), Balasore in Civil Suit No.420 of 2009 (1558-2014). ---- Smt. Minati Patra …. Appellant -versus- The Sales Unit Head, ACC Limited, Bhubaneswar, City Centre & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Karunakar Rath, D.Rath, G.C. Maharana and S.Ghosh, (Advocates) For Respondents -
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing :14.09.2023 : Date of Judgment:29.09.2023 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has RSA No.6 of 2023 Page 1 of 6 {{ 2 }} assailed the judgment dated 31st October, 2022 passed by the learned 2nd Additional District Judge, Balasore in R.F.A. No.13/224 of 2020/2016. By the same, the First Appeal filed by the present Appellant under section 96 of the Code by the unsuccessful Plaintiff in C.S. No.420 of 2009) has been dismissed and thereby, the judgment and decree dated 6th October, 2016 and 20th October, 2016 respectively passed by the learned Civil Judge (Senior Division), Balasore in Civil Suit No.420 of 2009 (1558-2014), have been confirmed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Facts necessary for the parties are as under:- The Plaintiff filed the suit seeking a money decree against the Defendants. The claim of the Plaintiff is that she, being the proprietor of M/s.Siva Sankar Traders at Bhograi, was the dealer of cements and used to purchase cements and sell those. The Plaintiff was purchasing huge quantity of cements from the Company and selling those to the sub-dealers and customers. The Plaintiff claimed that on account of all the business transactions, she is entitled to get a sum of Rs.3,16,891/- from the Defendants RSA No.6 of 2023 Page 2 of 6 {{ 3 }} and since the Defendants did not pay the said sum, in spite of several demands from the side of the Plaintiff, the suit was filed. 4. The Defendants, in their written statement, while traversing the plaint averments, very much asserted that the suit is barred by limitation and also not maintainable since the Plaintiff, based on the very self-same claim, having filed the previous suit, had withdrawn the same without seeking the leave to institute a fresh suit subsequently. The suit has been dismissed on the ground of limitation and also being barred under Order 23 Sub Rule 4 of Rule 1 of the Code. 5. Mr.K.Rath, learned counsel for the Appellant (Plaintiff) submitted that the views taken in that regard by the Courts below are not correct and liable to be up-set. He, therefore, submitted that while considering the question of limitation, the provision contained in Section 14 of the Limitation Act has not been taken into account and without applying the same in its proper perspective to the facts and circumstances of the case, the Courts below have answered the said issue against the suitor. He further submitted that withdrawal of the previous suit filed by the Plaintiff, even though was without the leave to file the same, that does not have any adverse legal implication for the present suit since the Plaintiff, during the interregnum, was pursuing his remedy before the forums under the Consumer Protection Act, RSA No.6 of 2023 Page 3 of 6 {{ 4 }} 1986 (in short, ‘the P.C. Act’). He therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 6. Keeping in view the submissions, I have carefully read the judgments passed by the Courts below. 7. In order to address the submission of the learned counsel for the Appellant (Plaintiff) and thereby answer as to whether the Appeal involves any substantial question of law meriting its admission; some background facts are required to be placed. 8. Admittedly, the Plaintiff had filed Money Suit No.56 of 2005 advancing the above money claim as against the Defendants. The suit was suddenly withdrawn and the matter then was persuaded before the forums available under the C.P. Act. Finally, the National Consumer Disputes Redressal Commission, said that the dispute raised by the Plaintiff and the claim advanced are not falling for adjudication/direction by the forums created under the C.P. Act. Echoing in that view, when National Consumer Disputes Redressal Commission directed the Plaintiff to institute the claim in proper Court, the present suit has been filed. 9. The provision of Section 14 of the Limitation Act is meant to condone certain bona fide conduct of a suiter instead of being RSA No.6 of 2023 Page 4 of 6 {{ 5 }} made to suffer for his such conduct or the conduct of his counsel. The presumption of bona fide is not ipso facto applicable for such condonation. Nothing shall be deemed to have been done in good faith, which was not done with the due care and diligence. It has also no applicability where the earlier proceeding/suit has failed due to negligence or latches. The provision contained in Section 14 of the Limitation Act does not come to the rescue of a party guilty of negligence, latches, inaction or bad faith. A party, who pursues the proceeding in ignorance of law, cannot be said to prosecute with due diligence. Therefore, the period of limitation running from the date of accrual of the cause of action for filing the suit in this case was neither arrested during the period, the matter progressed in these forums under C.P. Act nor that period would stand excluded. In that view of the matter, the suit is clearly barred by limitation. 10. Adverting to the facts of the case, it is seen that the earlier suit, seeking the same relief, had been withdrawn. Withdrawal was not with the leave of the Court. Thus, said suit stood dismissed because the Plaintiff withdrew the same. That being the position, the subsequent suit, without obtaining the leave, is clearly not maintainable on the face of the provisions contained in Sub Rule 1 of Rule 4 of Order 23 of the Code. RSA No.6 of 2023 Page 5 of 6 {{ 6 }} 11. In the wake of aforesaid, this Court finds no such substantial question/s of law standing for answer this Appeal meriting its admission. 12.
Decision
In the result, the Appeal stands dismissed. There shall be no order as to cost. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 03-Oct-2023 16:09:04 RSA No.6 of 2023 Page 6 of 6