Asok Kumar Saha vs State Of West Bengal And Ors

Shivakant Prasad, J

In this application the petitioner/defendant have prayed for setting aside of the ex parte decree dated September 15, 2014 passed by the Hon'ble Mr. Justice I.P. Mukerji in C.S. No. 45 of 2014, inter alia, on the grounds that there is no gross negligence and deliberate inaction in preparing this application of condonation of delay of 316 days for setting aside the ex parte decree.

It is submitted that on March 5, 2014, the petitioner no. 4, namely, the Directorate of Cooperative Audit was served with a duplicate copy of the writ of summons and having received the summons on March 7, 2014 a written note was made over to Mr. Sadananda Ganguly, learned Additional Government Pleader and Mr. Subhabrata Dutta Advocate was engaged by legal Ld. Remembrancer on March 13, 2014 to take steps in the suit to prepare a written statement and to file the same before the Court.

Petitioners have recently discovered that learned Advocate engaged in the matter apparently did not notice that the said suit had appeared in the supplementary cause list of the Hon'ble Mr. Justice I.P. Mukerji on September 15, 2014 as 'undefended suit' and omitted to enter appearance in the suit which stood decreed undefended by the judgment dated 15th September, 2014.

It is also submitted that the defendants were under bona fide impression that learned Advocate engaged on behalf of the State's defendants was taking adequate steps and there is no deliberate or willful laches or default on the part of the defendants.

It was due to the lack of communication and misunderstanding between the petitioners and their learned Advocate that the suit could not be defended as a result whereof the ex parte decree came to be passed. No doubt, the statutory period prescribed for preferring the instant application has elapsed upon expiry of 30 days from the date of the decree but the petitioners were prevented by sufficient cause from filing the instant application at an early date.

Petitioners/defendants came to know about the ex parte decree from Mr. Paritosh Sinha, learned Advocate on Record for the State of West Bengal, during the meeting held in his chamber on 19th August, 2015. It was given to the understand that the Hon'ble Justice Soumen Sen was pleased to direct the decree holder to serve a copy of the execution application upon Mr. Paritosh Sinha when the said application was taken up for hearing on August 18, 2015 upon noticing that the judgment debtors were all officers and instrumentality of the State.

Accordingly, the petitioners/defendants have prayed for setting aside the decree dated September 15, 2014 upon condoning the delay of 316 days in filing the instant application.

The plaintiff/respondent has contested this application by filing an affidavit in opposition contending, inter alia, that the instant application has been made almost after a year of passing of the decree in the instant suit at the stage when the matter appeared before the executing Court for execution of the decree. Mr. Sadananda Ganguly Advocate is a senior Advocate and one of the Additional Government Pleaders to the Government of West Bengal and reckless allegations have been made without any proof and that the petitioners/defendants have failed to show 'sufficient cause' for recalling the decree passed in the suit and filed the instant application with the delay of 316 days without properly explaining the delay on a day to day basis to the plaintiff/respondent. Accordingly, the plaintiff/respondent has sought for dismissal of the application with examplanary cost.

It is submitted on behalf of the petitioners/defendants that all together 35 letters were issued by the petitioner/defendant no. 4 to the plaintiff/respondent requesting him to submit his pending bills and to approach the Rent Controller of Kolkata for enhancement of rent, however, the plaintiff/respondent deliberately did not submit his pending bills whereas the co-owner of the said premises, namely, Shri Aditya Narayan Saha being the brother of the plaintiff/respondent duly submitted his bills and the rent payable to him were duly paid by the petitioners. Therefore, there was no default in payment of rent to the plaintiff.

Point for consideration is whether there is sufficient cause for the ex parte decree to be set aside and whether there is deliberate or willful laches on the part of the petitioners/defendants.

The specific contention of the petitioners/defendants is that they were prevented by the circumstance from representing the suit at the time when it was called for hearing.

This Court is of view that to set aside the decree ex parte in a suit is a matter of discretion of the Court. Yet, it is expedient on the part of the Court to set aside an ex parte decree for default of the appearance, if there is a good cause for non-appearance.

It is principle of law that sufficient cause for the purpose of setting aside an ex parte decree passed in a suit has to be construed as an elastic expression for which no hard and fast guidelines is prescribed but the Court has wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The sufficient cause for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte.

In support of the case of the plaintiff/respondent case, reference has been made to a decision in case of Ramlal, Motilal and Chhotelal vs. Rewa Coalfields ltd reported in (1962) 2 SCR 762: AIR 1962 SC 361 to argue that the petitioners/defendant have not been able to show sufficient cause for condonation of delay and even if sufficient cause has been shown, they are not entitled to condonation of delay in question as a matter of right and has relied on the extract of observation made in paragraphs 7 and 12 reproduced thus-

"it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice....."

"12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by s.5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under s.14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of ss. 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of s.14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under s.5 without reference to s.14."

Reference is also made in case of Madhya Pradesh Matsya Mahasangh vs. Sudheer Kumar And Another reported in (2010) 15 Supreme Court Cases 179 to submit that the petitioners were aware of the hearing dates after it was placed ex parte and before the suit was decreed, who consciously chosen not to defend the case any further.

In the said decision the cause shown for delay was wholly inadequate and unsatisfactory bordering on suppression and misrepresentation of facts with the depreciable conduct of the petitioner. So order passed by the High Court in refusing to condone delay of 948 days was affirmed by the Hon'ble Supreme Court.

Reference is also made to a case of Prabha Agarwal Vs Aditi Oil Mill (2016 SCC Online Cal 2288) to argue that the delay cannot be condoned in the given facts of the case.

In rebuttal, learned Advocate for the petitioners/defendants has submitted that decisions relied on by the plaintiff/respondent in cases viz., AIR 1971 Cal 322, 2010 (15) SCC 179, AIR 1962 SCC 361 are distinguishable from the facts and circumstances of the instant case. It is argued that contention of the respondent that each day delay has to be explained in an application for condonation of delay has been well pleaded in paragraph 4 to 14 of the application showing the sufficient cause for condonation of delay.

The issue in the cited judgment has been watered down by the Hon'ble Supreme Court in the State of Nagaland Vs. Lipok AO & Ors. reported in 2005 (3) SCC 752 in case where the Government is a party wherein the expression sufficient cause has been considered as adequately elastic to enable the Court to apply the law in a meaningful manner which sub serve the aims of justice, that being the life purpose for existence of the institution of the Court. The expression every days delay must be explained does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of non deliberate delay. The expression sufficient cause must receive a liberal construction so as to advance substantial justice and generally delay in preferring in appeal are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of delay.

It has also been observed that "in litigation to which the Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost of such defaults, no person is individually affected but what, in the ultimate analysis, suffers is public interest. The decision of Government are collective and institutional decision and do not share the characteristics of decisions of private individuals. The Government decisions are preferably slow encumbered, as they are, by a considerable degree of procedural red tappism in the process of their making a certain amount of latitude is, therefore, not permissible. It would, perhaps, be unfair and unrealistic to public Government and private parties on the same footing in all respects in such matters."

In the given facts of the case there is no suppression and misrepresentation of the facts going root to the case so as to hold that delay has been attributed by the petitioners/defendants by suppression and misrepresentation of the facts. The petitioners have also relied on the observation made in case of Ramlal (supra) wherein it has been held that the Court has discretion to condone the delay by excusing the petitioner if sufficient cause is given and such discretion has been conferred on the Court for judicial discretion to advance the cause of justice. Thus, the Hon'ble Supreme Court held that the word sufficient cause must be liberally construed when no negligence nor inaction nor want of bona fide is imputable to the petitioner.

I find that in the given facts of the case the senior Advocate was engaged to conduct the suit on behalf of the petitioners/defendants but when the matter was called for hearing he could not make himself available before the Court as a result the suit was decreed undefended and the judgment passed was judgment in absentia, ergo, sufficient cause is well explained on behalf of the petitioners warranting this Court to condone the delay for setting aside the ex parte decree.

In the context above, the delay of 316 days in preferring the instant application for setting aside the ex parte decree is condoned so that substantive right of the petitioners/defendants is not defeated merely on the ground of delay. Consequently, the ex parte decree dated September 15, 2014 passed in C.S. No. 45 of 2014 be set aside, however, subject to payment of cost of Rs. 50,000/- by the petitioners/defendants to the plaintiff.

Accordingly, the application being G.A. No. 2901 of 2015 is allowed with costs.