Bhagyadhar Roy & Ors vs Rajendra Nath Roy

Bibek Chaudhuri, J

CAN 5634 of 2010 is an application under Section 5 of the Limitation Act praying for condonation of delay of 50 days in preferring the appeal by the defendants/appellants.

In the instant application, it is stated by the petitioners that the learned Additional District Judge, Cooch Behar in Title Appeal No.21 of 2008 dismissed the Title Appeal No.21 of 2008 affirming the judgment and decree passed by the learned Civil Judge (Senior Division), Cooch Behar in Title Suit No.19 of 2001. The judgment and decree of the Lower Appellate Court was passed on 13th April, 2009 and the defendants/appellants preferred the instant appeal on 7th September, 2009, i.e. 50 days after the prescribed period of limitation. It is also stated by the petitioners that the Second Appeal before this Court ought to have been filed on 19th July, 2019. However, it was filed on 7th September, 2009. In order to explain the delay, the petitioners have stated that after obtaining the certified copy of the judgment and decree passed by the Lower Appellate Court, the petitioners contracted their learned Advocate at Cooch Behar on 24th May, 2009 and he advised them to prefer an appeal before this Court on 26th May, 2009. The learned Advocate at Cooch Behar suggested the name of an Advocate practicing in High Court at Calcutta through whom they could prefer the appeal. However, at the relevant point of time Summer Vacation was going on and the petitioners could meet their learned Advocate of the High Court at Calcutta only on 8th June, 2009. The learned Advocate examined the documents brought by the appellants and found that some more documents, specially the certified copies of the depositions adduced by both the parties during the trial of the suit were absolutely necessary to draft the Memorandum of Appeal. As per such instruction, the learned Advocate received all such papers required for preparation of Memorandum of Appeal only on 3rd August, 2009 and the appeal was preferred on 7th September, 2009. It is urged by the petitioners that they had no intentional latches for the delay in preferring the appeal. Therefore, such delay may be condoned.

Learned Advocate for the respondents/opposite parties have filed an affidavit-in-opposition controverting all such allegations made out by the petitioners in their application of condonation of delay. It is alleged by the respondents that the appellants/petitioners are not diligent to file the instant appeal within the period of limitation as they were negligent, they cannot get the protection of Section 5 of the Limitation Act because law comes to the assistance of the vigilant and not the negligent. It is further alleged by the respondents that the appeal was filed in 2009 and the application for condonation of delay was filed after a lapse of one year i.e. on 28th June, 2010. The application was only delayed and dragged for hearing at the instance of the petitioners and it has come up for hearing after 9 years of its filing.

Learned Advocate for the opposite parties also submits that sufficient cause means that the party should not have acted in a negligent manner or there was an want of bonafide on its part in view of the facts and circumstances of the case or it cannot be alleged that the party has not acted diligently or remained inactive. The applicants must satisfy the Court that he was prevented from prosecuting his case and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. In support of his contention he refers to a decision of Basawaraj Vs. Land Acquisition Officer reported in AIR 2014 Supreme Court 746.

It is contended by the learned Advocate for the opposite parties that had the appellant been diligent, he could have brought all the documents before the learned Advocate for perusal to prefer the instant appeal. The statement made in the application under Section 5 of the Limitation Act shows that the appellants/petitioners were in the habit of producing the documents before their learned Advocate in installments. Therefore, there was delay in filing the appeal. It is no matter as to whether delay is for a short period of time or considerable in number. It is to be considered by the Court as to whether delay is sufficiently explained or not.

Having heard the submission made by the learned Advocate for the parties and on perusal of the application as well as the affidavit-in-opposition and the above-mentioned report of the Hon'ble Supreme Court, there is no dispute on the point that delay in preferring the appeal must be sufficiently explained by the appellants/petitioners. However, it is no longer in res integra that the Court should not be pedantic in considering as to whether there was sufficient cause preventing the petitioner from preferring the appeal. In other words, the Court should take liberal approach in the matter of condonation of delay.

In the instant case, it is stated by the petitioners that they could not meet their learned Advocate of this Court due to Summer Vacation till 8th June, 2009. It is a matter of fact that from 26th May, 2009 to 8th June, 2009 there was Summer Vacation. Only on 8th June, 2009 they could meet their learned Advocate when they were advised to bring certain documents. The petitioners collected those documents and finally produced the same before the learned Advocate on 3rd August, 2009. Subsequently, the instant appeal was filed in the month of September, 2009. From the explanation given by the petitioners, I am not in a position to hold that such explanation is false and frivolous in nature and should not be accepted.

For the reasons stated above, I am inclined to allow the instant application under Section 5 of the Limitation Act subject to payment of cost of Rs.100 GMs to be paid by the petitioners to the opposite party within 15 days from the date of this order.

On payment of such costs, for allowing the application for condonation of delay and filing receipt thereof. The record of the instant appeal shall be sent to the Division Bench having determination for hearing in Order XLI Rule 11 of the Code of Civil Procedure.