TMI Blog2017 (8) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Limitation Act is not available only for defect of jurisdiction, but also 'other cause of like nature' and interpretation of 'other cause of like nature' as only defect of jurisdiction, would be against the intention of legislation as in that eventuality there was no need to incorporate the word 'or other cause of like nature.' - Section 34(5) of the Act 1996 provides that an application under Section 34 'shall' be filed by a party 'only after' issuing a prior notice to the other party and such application 'shall' be accompanied by an affidavit by the applicant endorsing compliance of the said requirement. The language of sub Section indicates that compliance thereof is mandatory in nature and definitely without such compliance and affidavit related thereto, the Court was unable to entertain it. After permitting exclusion of time from 26.2.2015 to 25.10.2015 taken in pursing the first application/petition filed without compliance of provisions of Section 34(5) of the Act, 1996 and re-filing the present application/petition after compliance thereof, the delay of 6 days in filing the application/petition is condoned - application allowed. - OMP (M) No. 48 of 2016 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Arbitrator announced impugned award on 21.11.2015 and supply copy thereof on the same date. Application/petitioner had assailed the said award by filing an application/petitioner under Section 34 of the Act, 1996 on 26.2.2015 after 6 days of expiry of three months after passing of impugned award, but within 30 days, as available to applicant/petitioner in proviso of Section 34 (3) of the Act 1996 definitely subject to satisfaction of the Court to the sufficient cause prevented the applicant/petitioner from making the application within the time of three months. 5. It is admitted that the earlier application/petition was filed without issuing prior notice to respondents under sub clause (5) of Section 34 of the Act, 1996 and obviously affidavit in support of petition could not have been an affidavit endorsing compliance with the said mandatory requirement of issuance of notice. It is also admitted fact that respondents had raised objection of non-compliance of Section 34(5) of the Act, 1996, whereupon previous application/petition preferred by the petitioner was withdrawn on 20.10.2015, whereafter complying with the requirements of Section 34(5) of the Act 1996 by issuing n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed bonafidely and the said application/petition was being pursued by applicant/petitioner in good faith from 26.2.2015 to 20.10.2016 and the same was withdrawn for curing the defect, for which the Court was unable to entertain the said petition as the said defect was equivalent to the defect of jurisdiction and after withdrawing the said petition, present petition has been filed within reasonable time of 5 days after immediate compliance of mandatory provisions of law i.e. issuing notice to respondents under Section 34(5) of the Act, 1996 on 21.10.2016 and therefore, the time spend in pursuing the previous application/petition since 26.2.2015 to 25.10.2015 deserves to be excluded under Section 14 of the Limitation Act. 10. It is also contended by learned counsel for the applicant/petitioner that applicant/petitioner Company is an out stationed company situated at Hyderabad, though also having its office at Delhi, but no office in the State of Himachal Pradesh, nevertheless in Shimla and also not having any local attorney or Advocate in Shimla, therefore, despite due diligence on the part of the applicant/petitioner, previous application/petition under Section 34 of the Act wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod for removal of such objection shall be seven days at a time and 20 days in the aggregate. If the period taken by the concerned party for removal of the objections exceeds the time limit specified above, the Registry shall not accept the papers unless the delay in removal of such objections is condoned on an application by the party. He contended that objections were raised by Registry on 27.10.2015 and removed finally by appellant on 6.12.2015 after 36 days which is beyond prescribed maximum period of 20 days and thus, the application/petition is not properly constituted as the time beyond 20 days was not extendable by the Registry and entertaining application/petition by Registry without any application for condonation of delay in removing the objections as required to be filed by the applicant/petitioner at the time of refilling of the application/petition after removing the objections beyond the period of 20 days does not mean automatic condonation of delay. It is also contended that pleadings of applicant/petitioner in present application are casual in nature and there is no explanation for delay of each and every day, as is required to be explained as the applicant/petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or some similar cause of like nature. 14......... 15......... 16......... 17......... 18......... 19. It is an admitted fact that the issue of grant of menses profit in the earlier suit was decided against the plaintiffs, on account of the invalidity of the notice determining the tenancy. It cannot be said that the earlier suit was altogether misconceived. The plaintiffs' claim for menses profit had not been gone into or investigated into in that suit because the court considered that the court was not competent to grant the relief of menses profit as claimed in the said suit for want of legal and valid notice determining the tenancy. It cannot be contended, even for a moment, that there was adjudication of the suit claim on merits. A copy of the judgment in the earlier suit is produced on the records of the present case, at Ex. 35/2. Merely because there was no legal and valid notice, the court in earlier suit was not competent to pass decree for possession and the resultant menses profit from the date of the suit. Thus, invalidity and illegality of the notice under the rent legislation prevented the Trial Court in the first suit to decide the issue of menses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections, beyond 20 days is not fatal for the applicant/petitioner as the Registry has never objected re-filing of the petition beyond 20 days after removing the objections and for this reason it cannot be said that application/petition is not properly instituted for want of condonation of delay in re-filing the petition after removing objections as it was entertained by the Registry and listed in the Court without any such objection and therefore, there was no occasion for the applicant/petitioner to invoke Rule 7 of Chapter 6 C of Part 1 of H.P. High Court Rules. In fact the delay in re-filing deserves to be considered as deemed to have been condoned. Otherwise also for the explanation given by the applicant/petitioner supra, such delay deserves to be condoned. 14. Considering the language of Section 14 of Limitation Act and also case law cited by the applicant/petitioner, it is undisputed that exclusion of time as provided under Section 14 of the Limitation Act is not available only for defect of jurisdiction, but also 'other cause of like nature' and interpretation of 'other cause of like nature' as only defect of jurisdiction, would be against the intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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