K. Hydroos vs P.K. Hassan Ali

Ishan Chandra Das, J—In the instant revisional application the petitioner assailed the order (being order No. 05 dated 11.06.2015) wherein the learned court below rejected the prayer for condonation of delay in filing the appeal against the judgement and decree passed by learned Civil Judge Senior Division, Port Blair in TS No. 06 of 2005. The instant revisional application has a long chequered history which is noted below:--

"The suit for partition was filed at the instance of the petitioner being TS No. 06 of 2005 before the learned Civil Judge Senior Division, Port Blair and the said suit was decreed on contest against the opposite party in preliminary form declaring rights of the parties in respect of half share each in the disputed property and they were asked to make amicable partition within three months from the date of the order, failing which either of the parties was given liberty to pray for partition by metes and bounds through court. Since the parties failed to effect partition by amicable agreement in terms of the decree, a commissioner was appointed to effect such partition and he submitted his report, but that report was not accepted by learned Trial Court, who again appointed the Sub Divisional Officer as a partition Commissioner whose report was submitted showing valuation of shares of the parties (as described in para 6 of the revisional application) and that report is accepted and a direction was given to the parties to take possession as per final decree within ninety days and in default of that an execution case was filed and the same is pending. It is also revealed from the order impugned that the final decree was modified at the instance of the present respondent, but the petitioner herein being aggrieved by such modification approached the learned Trial Court for review of the order of the final decree, but the same was turned down which led him to file the revisional application before Hon''ble High Court and the same met with identical fate. However, in the said order of the High Court a liberty was given to the petitioner to prefer an appeal against the final decree."

Learned counsel for the petitioner at the outset pointed out that the petitioner could not appear before the court of learned District Judge in due time due to the fact that the petitioner was awfully busy for the treatment of his wife who was suffering from cancer and finally expired on 4th June 2014 for which his client could not file the appeal being TA No. 26 of 2014 in time, which was filed on 25.11.2015 with an application for condonation of delay in filing such appeal in terms of section 5 of the Limitation Act, rejection of which led the petitioner to take recourse to this Court by filing this revisional application assailing the impugned order.

Now, the point for consideration is whether learned District Judge, Port Blair is justified in rejecting the prayer of the petitioner to admit his appeal being TA 26 of 2014 as the same not being filed within the prescribed period of limitation.

Mr. K.M.B. Jayapal, learned counsel for the petitioner submitted that learned District Judge, Port Blair while dealing with the application for condonation of delay in filing appeal entered into merit of the case which is not permissible in law. In support of his contention he relied on a decision of the Hon''ble Apex court in State of Gujarat Vs. Sayed Mohd. Baquir El Edross, AIR 1981 SC 1921 : (1981) 3 SCALE 1793 : (1981) 4 SCC 1 : (1982) 1 SCR 551 : (1981) 13 UJ 755 urged that while dealing with prayer of condonation of delay, the court should not be influenced by merit of the appeal. Relying on full bench decision of the Hon''ble Gujrat High Court in Municipal Corporation of Ahmedabad Vs. Voltas Limited and Others, AIR 1995 Guj 29 : (1994) 2 GLR 1325 and urged that ''the courts are required to take the liberal view while considering the facts constituting the sufficiency of the cause on the basis of which condonation of delay is sought.''

Mrs. Nag learned counsel for the opposite party submitted with confident tune that learned District Judge while dealing with the application under section 5 of the Limitation Act committed no mistake by rejecting the same. She with all fairness submitted that while considering application for condonation of delay no straight jacket formula is prescribed to come to a conclusion whether sufficient and good ground had been made out. Relying on a catena of decisions of the Hon''ble Apex Court she pointed out that learned District Judge while dealing with the application under section 5 of the Limitation Act noted conduct of the petitioner throughout entire proceeding right from the filing of the suit of partition till filing of the application under section 5 of the Limitation Act which is quoted below:--

"But the factual aspect is that the proceeding of the final decree that the appointment of Commissioner for effecting preliminary decree was done during that period. The appellant never challenged such procedure during the drawing of the final decree before the upper forum. However, during that period, he also preferred several applications before the Hon''ble Court. Furthermore, it has been clearly mentioned in the petition itself that his appointed Advocate intimated him the entire procedure time to time. Moreover, it appears from the record that the wife of the petitioner died on 04.06.2014 and the instant appeal was preferred on 25.11.2014. Such delay was never explained in the petitioner itself. As per provision of section 5 of Limitation Act, the delay must be explained day to day basis though there are several guidelines of the Hon''ble Apex Court in the matter that the point of limitation should be considered leniently but in the instant application the delay in preferring the instant appeal after demise of the wife of the appellant is not explained and furthermore, after passing of the final decree, why he did not file the instant appeal was also not mentioned."

While advancing her argument she relied on the decision of the Hon''ble Supreme Court in the case of D. Gopinathan Pillai Vs. State of Kerala and Another, AIR 2007 SC 2624 : (2007) 1 ARBLR 154 : (2007) 2 SCALE 222 : (2007) 2 SCC 322 : (2007) 1 SCR 904 : (2007) AIRSCW 4713 : (2007) 1 Supreme 510 and pointed out that ''it is well-considered principle of law that the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason.'' Pointing out the principles as held by the Hon''ble Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 5 CTC 547 : (2013) 4 RCR(Civil) 785 : (2013) 11 SCALE 418 : (2013) 12 SCC 649 : (2014) 1 SLJ 20 , she urged that the term ''sufficient cause'' should be understood in their proper spirit, philosophy.... and are to be applied in proper perspective to the obtaining fact-situation and the concept of liberal approach cannot be allowed a totally unfettered free play. She also relied on the Hon''ble Apex court in Brijesh Kumar and Others Vs. State of Haryana and Others, AIR 2014 SC 1612 : (2014) AIRSCW 1831 : (2014) 4 SCALE 50 and opined that the court while dealing with the application under section 5 of the Act has to draw distinction between delay and inordinate delay in filing such application and further pointed out that sufficient cause which being condition precedent to file such application has to be explained satisfactorily and convincingly and the court cannot condone the delay on sympathetic grounds alone.

It is pointed out earlier that the instant revisional application has a long chequered history and it is not disputed that the petitioner filed the instant appeal being TA No. 26 of 2014 before learned District Judge, Port Blair coupled with the application under section 5 of the Limitation Act without explaining the delay what restrained him to file the application under section 5 of the Act, not even averred that he was suffering from mental agony or the like. The portion of the order impugned as noted above reflected that the petitioner took several steps in course of pendency of the original suit till preparation of the final decree which proves that the petitioner was well aware of the steps taken by him or his advocate as the case may be. Since the petitioner did not explain sufficient cause for delay in preferring the appeal in the application under section 5 of the Limitation Act, I am of the opinion that the learned District Judge was fully justified in rejecting his application. In this context we may refer to the decision of the Hon''ble Supreme Court in G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 : (1988) 1 JT 524 : (1988) 1 SCALE 479 : (1988) 2 SCC 142 : (1988) 3 SCR 198 : (1988) 1 UJ 666 where the court held that:

"14. The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there in negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression ''sufficient cause'' in Section 5 must receive a liberal construction so as to advance substantial justice."

In view of the above decision of the Hon''ble Apex court I firmly conclude that the order impugned does not warrant interference in this revision and the opposite party cannot be asked to make any sort of charity at the cost of his own interest. Hence, this revisional application being devoid of merit is rejected. However, considering the facts and circumstances of the case I make no order as to costs.

Urgent certified xerox copy of this judgment and order, if applied for, be given to the parties as expeditiously as possible upon compliance of necessary formalities.