Aditya Kumar Ghosh & Ors. vs Anurupa Chattopadhyay & Ors.

With the consent of the parties, the application for substitution being CAN 609 of 2019 is to be treated as on day's list and is taken up for hearing first.

It is submitted that the original revisionist no.1, namely, Aditya Kumar Ghosh, has since been died on 12th January, 2019 and an application for substitution and consequent amendment of the revisional application has been made being CAN 609 of 2019.

In the circumstances, the petitioner nos. 1(a), 1(b), 1(c) and 1(d) be added as revisionists in place and stead of the original petitioner no.1.

The learned Advocate-on-record for the petitioners shall carry out the amendments in course of the day.

Since the opposite parties are represented, no fresh service of the application upon them is necessary.

The amendment as directed herein and carried out by the learned Advocate appearing for the revisionists shall be communicated to the learned Advocate for the opposite parties.

The Revisional application is directed against an order dated 20.10.17 passed in Misc. Appeal No. 38/07 passed by the learned Additional District Judge, 1st Court, Bankura. The appeal arose out of an order dated 04.08.2007 passed by the learned Civil Judge, Senior Division, Additional Court, Bankura in Misc. Case No. 3/04 refusing to recall an order dismissing the suit for default.

The facts of the case are that the title suit being T.S. 24/96 was renumbered as T.S. 152/01 and the suit came to be dismissed for default on 06.08.2003. Thereafter, on 08.07.2004, the plaintiffs filed an application under Order IX Rule 4 of the Code of Civil Procedure for restoration of the suit.

It was found by the 1st court that Tirthapada Ghosh who was contesting as PW 1 out of the eight plaintiffs, had fallen ill between 28.07.03 till 07.07.04. The doctor was examined. The learned court below found that the medication prescribed by the Doctor does not appear to have been availed of by the said Tirthapada Ghosh.

The learned court below also found that there were other plaintiffs who could have been contested the suit. Hence, the Misc. Case No. 3/04 was rejected by the 1st court.

On an appeal being Misc. Appeal No. 38/07, the lower appellate court concurrently discussed the findings of the 1st court and agreed with the same and gave some additional reasons.

It is found by the lower appellate court that even the appeal was filed beyond the period of limitation, there was no application under Section 7(5) of the said Act.

The learned counsel appearing on behalf of the revisionist submits that he is entitled to make oral application for condonation of delay under Section 5 of the Limitation Act.

In this regard, he relies upon Order XXXXI Rule 3(a) of the Code and a decision of this Court reported in 1985 CWN 353 being the case of C. Das vs. S. Das wherein a Single Bench of this Court held that an oral application under Order XXXXI Rule 3(a) of the Code could also be made.

This court is of the view that the essence of Order XXXXI Rule 3(a) is aimed at achieving a satisfaction of the court as regards the bona fides of an appellant in seeking condonation of delay. Such satisfaction can be arrived at both on oral as well as written applications supported by affidavit while a written application is otherwise desirable. Mere absence of a written application therefore should not disentitle the appellant from canvassing or urging grounds for condonation of delay.

However, it is found in the facts of the case as has been found by the learned court below that the conduct of the plaintiffs has been wholly and completely recalcitrant. They have not taken any steps in the suit and have relied on one person who has deposed that he was unwell. The evidence that has come as regards the illness of the contesting plaintiff is also not convincing as has been found by the two courts below.

The court below fairly assessed bona fides and the urgency shown by the plaintiff in a suit to contest the same based on his conduct and the facts of the case in no uncertain terms, found absence of any diligence on the part of the plaintiffs.

It is submitted by the learned counsel appearing on behalf of the revisionist that the 1st revisionist has been suffering from illness and has died during the pendency of the revisional application. The other plaintiffs are a house-wife or persons who have attained majority, recently.

The learned counsel appearing on behalf of the opposite party defendants in the suit submits that the plaint in the suit indicates to the contrary as regards the age of the contesting plaintiffs.

Considering the facts of the case as emerged in the instant revisional application, I am not inclined to interfere with the concurrent findings of the two learned courts below and, more so, in the circumstances of the case, as recorded hereinabove, it is evident from the pleadings that the valuable rights have accrued to the defendant in a suit is for specific performance.

In view of the above, the instant civil revisional application stands dismissed.

There will be no order as to costs.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.