1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4987 OF 2009 Sahebrao s/o. Pralhad Hiwale, Age 47 yrs., Occu. Labour & Agri., R/o. Jafrabad, Tal. Jafrabad, Dist. Jalna. ....Petitioner. Versus 1. Habib Abdul Bashid s/o. Habid Mohd. Chause, Age 30 yrs., Occu. Agril., 2. Habib Mohd. s/o. Habib Mahisen Chause, Age 60 yrs., Occu. Agril., Both R/o. Andrun Killa, Jafrabad, Tal. Jafrabad, Dist. Jalna. ....Respondents. Shri. P.R.Katneshwarkar, Advocate for petitioner. Shri. S.S. Kazi, Advocate for respondent Nos. 1 and 2. CORAM : R.K. DESHPANDE, J. DATE : 9th June, 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 4.5.2009 passed by the learned District Judge - 1, Jalna below Exh. 1 in Misc. Civil Application No. 64/2009, dismissing the application under Order 41, Rule 19 of Civil Procedure Code filed by the petitioner for readmission of appeal which was dismissed in default, on the ground that it is barred by limitation in view of Article 122 of the Limitation Act, 1963. The petitioner in this writ petition is appellant in Regular Civil Appeal No. 2 204/2007. 2. Notice in this matter was issued on 31st of July 2009. Shri. Kazi, the learned counsel appears for respondent Nos. 1 and 2 in response to the notice issued by this Court. Both the learned counsel agree that the matter can be decided finally at the stage of admission. Hence, Rule, returnable forthwith. Heard the matter with consent of parties. 3. The petitioner is the original plaintiff and had filed Regular Civil Suit No. 35/2006 for grant of mandatory injunction against the respondents/defendants. The said civil suit was dismissed by the Trial Court on 30.8.2007. The plaintiff, therefore, preferred Regular Civil Appeal No. 204/2007 which was tried by the learned District Judge -1, Jalna. 4. On 9.10.2007 the notices were issued in said Regular Civil Appeal, to the respondents and the record and proceedings were called. On 6.10.2008 the order was passed below Exh. 1 that the paper book be prepared as per rules and the charges were estimated to Rs. 948/-. The plaintiff was asked to deposit the said charges. However, the plaintiff failed to deposit the charges. Hence, on 24.2.2009 on the basis of application, (Exh. 13) filed by the respondents/defendants the learned District Judge-1, Jalna dismissed the appeal for want of paper book charges and for want of prosecution. 3 5. Being aggrieved by the said order, the plaintiff preferred Misc. Civil Application No. 64/2009 under Order 41, Rule 19 and prayed for restoration of the appeal. The said application was opposed by the respondents/defendants. 6. On 4.5.2009 the learned District Judge -1, Jalna passed an order rejecting Misc. Civil Application No. 64/2009. It was held that Regular Civil Appeal was dismissed on 24.2.2009 for want of paper book charges, application for certified copy was submitted on 17.3.2009 and it was received by the plaintiff on 19.3.2009, the application for readmission of appeal was preferred on 30.4.2009 which was beyond the period of 30 days from the date of dismissal of appeal and hence, it was barred by limitation prescribed under Article 122 of the Limitation Act. This order is under challenge in the instant writ petition. 7. Shri. Katneshwarkar, the learned counsel appearing for the petitioner, urges that the dismissal of the matter in default was infact exercise of an inherent powers of the Court under section 151 of Civil Procedure Code and it was not a dismissal in default under Order 41, Rule 17 of C.P.C. According to him, the order 41, Rule 17 does not contemplate dismissal of the appeal, on the ground of non payment of paper book charges. He further submits that though it was an application under Order 41, Rule 19, infact it should be treated as an application under section 151 of C.P.C., invoking inherent powers of the 4 Court to restore the matter which was dismissed in exercise of the same powers. According to him, for such an application no period of limitation is prescribed and mere title of the application under Order 41, Rule 19 would not be decisive. According to him, District Judge was wrong in applying the provision of Article 122 of the Limitation Act and according to him, the matter is governed by Article 137 of the Limitation Act. He further submits that even assuming that it was an application under Order 41, Rule 19 of C.P.C. what it contemplates is merely to show that the applicant was prevented by any sufficient cause from appearing before the Court and it does not in that sense prescribed the period of limitation. 8. The aforesaid submissions are opposed by Shri. Kazi, learned counsel appearing for respondents. He submits, the dismissal of the matter for want of paper book charges was under Order 41, Rule 18-A of C.P.C. and not under section 151 of C.P.C. Hence, according to him, the application was rightly, styled as under Order 41, Rule 19 of C.P.C. for readmission of the appeal, dismissed in default. He relies upon the provisions of Article 122 of the Limitation Act, 1963 which deals with the application for restoration of the suit dismissed for default or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. He submits that Article 122 prescribes period of 30 days of limitation for preferring such application as contemplated under Order 41, Rule 19 of C.P.C. The plaintiff/appellant has admittedly not 5 filed any application for condonation of delay and hence, the learned District Judge was right in dismissing the application as barred by provisions of Article 122 of the Limitation Act. 9. After going through the order passed by the learned District Judge, it seems that the rival contentions which include questions of law having bearing on the issues involved, have not been considered. The questions which are required to be considered are as follows :- (i) Whether the dismissal in default for want of paper book charges was one under Order 41, Rule 17 or 18-A or is in exercise of inherent powers of the Court under section 151 of C.P.C. ? (ii) Whether the application under section 41, Rule 19 as styled by the petitioner can be treated as one under section 151 of C.P.C. ? (iii) If the application is to be treated as one under section 151 of C.P.C, whether the limitation would apply for making an application under section 151 of C.P.C. ? (iv) Whether for making an application under section 41, Rule 19 of C.P.C., the provisions of Article 122 of the Limitation Act are attracted ? 10. In view of the aforesaid position, the matter needs to be decided afresh by taking into consideration all these questions. The learned District Judge has not recorded any findings on these aspects, may be for 6 the reason that the points were not urged before him. The order impugned dated 4.5.2009 passed by the learned District Judge, therefore, needs to be set aside. 11. In the result, the instant writ petition succeeds. The order dated 4.5.2009 passed by the learned District Judge-1, Jalna, dismissing Misc. Civil Application No. 64/2009 as barred by the limitation, is hereby quashed and set aside and the matter is remitted to the learned District Judge-1, Jalna for deciding afresh in accordance with law. It is, however, made clear that this Court has not made any observations on merits of the matter and the learned District Judge is at liberty to express his views on the points of law expressed above. There shall be no order as to costs. 12. Shri. Katneshwarkar, the learned counsel for the petitioner seeks liberty to file an application for condonation of delay in filing Misc. Civil Application No. 64/2009 without prejudice to his other contentions. The liberty is granted. If such an application is made, the same shall be decided by the learned District Judge in accordance with law after giving an opportunity to file reply, affidavits to other side. [ R.K. DESHPANDE, J. ] ssc/wp4987.09