• Darkhast

My darkhast dismissed under order 9 rule 3 (none was present) therefore I have filed application to restore the same under order 9 rule 4, with the application to condone delay of 100 days, which is calculated from the day of dismissal.

Actually in Darkhast Proceeding every step was completed by both the parties. Lastly both parties had filed their written argument also, therefore, actually it was expected the court should pass the order but in spite of that the Executing Court dismiss the darkhast for the reason mentioned above.

I came to know (after filing application as mentioned above) that the the period is calculated from the date of knowledge or obtaining the certified copies. (omitting the period in between filing of application till receiving of copies)

If above statement (Col.No.2) is true then I have filed 15 days before the expiry of the limitation of 30 days. Therefore no need to file delay condonation application and at the time of proceeding, I should not press the same. Pl comment

While typing the draft of restoration application and application of delay condonation, it is observed today that, there are few grammatical and typing errors and two three sentence does not address correctly and one event slipped to add by mistake. The same has to be corrected.

Notice with the copy of restoration application to opposite party yet not issued due to less office staff in court.

Now My Questions:

In view of dismissal of Darkhast, how to calculate the period, whether from date of dismissal OR date of knowledge OR date of obtaining certified copies.

FOR above reply I NEED CITATION To SUBMIT BEFORE COURT, if your reply is “From the date of knowledge OR date of obtaining Certified Copies.

To correct the draft (as mentioned in above Col. 4) whether I should withdraw the application of restoration and application of delay condonation with the permission of court to file a fresh both applications.

If I withdraw both the application then which section or order will be applicable. (Order 23 rule 4 says that “nothing in this order shall apply to any proceedings in execution of a decree or order”) According to me it should be order 23 rule 1 will be applicable while withdrawing the applications.

IF I withdraw both applications the whether limitation law will attract again while filing the fresh applications or the it will not count the new period viz. The period involved in “From the date of filing of earlier application till the date of filing the fresh application”).

Instead of withdrawing whether I should file application for amendment by correcting the grammatical and typing errors etc. Few of serious errors has to be corrected.

Application for Amendment when to be filed (before notice issued to opposite party as stated above in Col No. 5 OR after opposite party appears in the said matter.

After completion of both side arguments, the court would have passed the Order, which did not. Pl comment.
Asked 4 years ago in Civil Law

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8 Answers

1. Limitation is calculated from the date of the knowledge of the order.

2. The question that "What is the meaning of the term “first learns” as provided under Article 91(a) of the Limitation Act, 1963" has been answered by the Supreme Court in the case available at the following link:

https://indiankanoon.org/doc/114770124/

It will be withdrawn under 23/1

It will be calculated from the date of the knowledge and not from the date of filing the previous application.

File a supplementary affidavit to make the correction and no need to withdraw the petition.

You have a valid case to fight.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Hi,

The calculation of time is done from the date of obtaining certified copies. There are clear laws regarding it. With the permission of court, you may amend the petition. The court may reserve the judgment after hearing the arguments.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Citation

T. Krishnaswamy vs Maniyamma on 18 September, 2000.

Mohammed Mujeeb
Advocate, Hyderabad
19029 Answers
32 Consultations

4.5 on 5.0

Hi,

The better advice and guidance can be given if you place the orders of dismissal here.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

The computation for filing the petition should be made from the date of receipt of the certified copies of the order, if applied late then the period involved for the copies to be made ready should be excluded.

For citation to the position of law, you can procure the same through your advocate.

You can withdraw the petition as not pressed with the leave of court to file a fresh petition and resubmit the same with incorporation of necessary changes in it.

You dont have to mention any provision of law to avoid confusion, you may just file a memo seeking withdrawal or dismissal as not pressed

Law of limitation will be applicable since you have withdrawn as not pressed, hence the period from the date of withdrawal till re-submitting shall be computed for the period of delay.

It is your choice to file an amendment petition or to withdraw and file a fresh petition.

Application for amendment to be filed after the petition is numbered.

You await the orders of the court if the same is reserved.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Please inform the citation in this regards in view of Darkhast dismissed under order 9 rule 3 regarding period of limitation starts from date of obtaing the Certified copies, so also please try to reply my other questions, mentioned in previous post.

The period of limitation for filing revision petition agaisnt the dismissal of petition filed under Order IX Rule 3 will start from the date of the certified copies made ready or the period involved in procuring the certified copies shall be excluded while computing the period for calculating the delay in filing the revision petition.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

The suit can be dismissed in terms of Order 9, Rule 3, CPC only when the parties have notice of the hearing. Article 181, governs the application for restoration and not Article 163 of Limitation Act. The Vakalatnama has been filed subsequently in the restoration application, thus is compliance under law. If the Court holds that the suit has been dismissed in terms of Order 9, Rule 3, CPC even then notice for restoration is not required in terms of Order 9, Rule 4, CPC, because the suit has been dismissed in absence of both the parties. In the given circumstances Article 163 of the Limitation Act is applicable and the prayer for condonation of delay is to be made but no formal application for condonation of delay is required to be made even oral prayer is enough.

Please confirm that the EP has or not been dismissed under the referred provision.

This rule contemplates a default by the plaintiff when the suit is called on for hearing. The suit could only be called on for hearing under this rule when parties have notice of the hearing. In the present case admittedly parties were not served, as such it cannot be said that the plaintiff had notice of the hearing. The dismissal therefore cannot be deemed to be under Order 9, Rule 3.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

1. restoration application has to be filed within limitation period computed from date of obtaining certified copy of order

2. if limitation is to be counted from date of knowledge then dishonest litigant can contend that he came to know about the order only lately in order to avoid the bar of limitation

3. if notice is not served to other side and papers are also not served then you can submit draft amendment to the court with a request to permit the amendment

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

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