Namita Nandi vs Susanta Kumar Nandi and Others

Ishan Chandra Das, J.—Heard learned Advocate for the parties.

In the instant revisional application, the propriety of the Order No. 64 dated 1st October, 2013 passed by the learned Additional District Judge, 3rd Court at Barasat in Title Appeal No. 07 of 2003 has been called in question.

The background of the instant application is that the Title Suit No. 95 of 2003 was filed at the instance of the husband of the present petitioner praying for declaration, cancellation of deed, recovery of possession, injunction and mesne profits and that suit was decreed on contest before the learned Civil Judge (Senior Division), 2nd Court at Barasat on 17th April, 2002. Being aggrieved by such judgment and decree, the defendants No. 5 to 7/opposite parties herein filed an appeal being Title Appeal No. 7 of 2003 coupled with an application for condonation of delay under Order XLI Rule 3A read with Order XLIII Rule 2 of the Code of Civil Procedure (Annexure ''P-2'') and a separate application under Section 5 of the Limitation Act was filed. While disposing of such application by the order impugned, learned trial court allowed the application for condonation of delay in filing the appeal before the court below subject to payment of costs of Rs. 10,000/- to the petitioner herein. Being aggrieved by such order i.e. the order impugned, this revisional application has been preferred.

The learned Counsel for the petitioner in course of hearing submitted that the learned court below was not justified in allowing the application for condonation of inordinate delay in filing the appeal since the opposite parties herein could not assign any cogent explanation what prompted them to file the appeal at the belated stage. Drawing my attention to paragraphs 7 & 8 of the order impugned dated 1st October, 2013, he submitted that the opposite parties/appellants in Title Suit No. 7 of 2003 came to know on 28th August, 2002 that the suit was decreed on 17th April, 2002 but the appeal was filed on 13th January, 2003 and thereby caused delay in filing such appeal for 272 days. Criticising the conduct of the opposite parties/appellants, learned Counsel for the petitioner herein further submitted that the appellants took the plea that there was a talk of compromise between the parties and for that reason they could not come to the court in due time for preferring such appeal which was a myth and such an alibi cannot be considered as a sufficient cause for condonation of delay in filing the appeal as provided by Section 5 of the Limitation Act. In support of his argument, learned Counsel for the petitioner relying on a decision of the Hon''ble Apex Court in the case of Sayeda Akhtar Vs. Abdul Ahad, submitted that the court should not extend time or condone the delay on mere sympathy but sufficient cause has to be shown in the application. Further relying on another decision of the Hon''ble Apex Court in the case of Amlendu Kumar Bera and Others Vs. The State of West Bengal, , he pointed out that the court should take a liberal approach in the matter of condonation of delay when the parties'' inaction in preferring the appeal marred by serious laches and negligence in absence of sufficient cause. He with all fairness admitted that the courts always take liberal approach in the matter of condonation of delay but where there are serious laches of negligence on the part of a party to the proceeding, it should not be excused whoever may the party at fault. To fortify his argument he also relied on two other decisions of the Hon''ble Supreme Court reported in Parimal Vs. Veena @ Bharti, and Punjab Financial Corporation Vs. Surya Auto Industries--> and clarified that sufficient cause could not be a substitute for inaction or negligence on the part of a party applying for condonation of delay. He further confidently urged that a defaulting party could not be permitted to take part in any proceeding at a belated stage when he did not have any sufficient justified cause resulting deprivation of a party to enjoy the fruit of a decree. In fine, he opined that the learned trial court was not justified in condoning the delay showing sympathy to the opposite parties though they failed to make out any sufficient cause for justifying their claim for condonation of delay.

His learned counterpart, on the other hand, at the very outset submitted with reference to Section 96(1) of the Code of Civil Procedure that the right to appeal is a statutory right. In this context, he relied on a decision of the Hon''ble Apex Court in the case of Vijay Prakash D. Mehta and Another Vs. Collector of Customs (Preventive), Bombay, and opined that such right of his client should not be taken away when the situation was beyond their control particularly when there was Puja Vacation and a prolonged strike due to hike in court fees during the intervening period from the date of decree and the date of filing such appeal. Further relying on another decision of the Hon''ble Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , he pointed out as follows:

"6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so..........................."

Supporting the decision taken by the learned trial court in condoning the delay, he submitted that the words ''sufficient cause'' should be construed liberally. To further his argument, he also relied on a Division Bench decision of the Hon''ble Jharkhand High Court in the case of The State of Jharkhand and Others Vs. Manju Suri and Another, and opined that while dealing with an application under Section 5 of the Act, a liberal concession has to be adopted to advance substantial justice and further opined that the right to appeal being a statutory one should not be curtailed on a flimsy ground when his clients could justify their inaction in preferring the appeal at the relevant point of time.

Frankly speaking, the appeal was preferred by the present opposite parties and there was delay in preferring such appeal for 272 days as observed by the learned court below. In the order impugned, the grounds shown therein i.e. the talk of compromise between the parties, the intervening Puja Vacation and a prolonged strike in the courts of West Bengal at the relevant time cannot be termed as ''insufficient cause'' in condoning the delay in preferring such appeal. The well known principle as formulated by the Hon''ble Apex Court in State of Jharkhand & Ors. vs. Manju Suri & Anr. (Supra), which guided the learned court below to condone the delay in preferring the appeal is quoted below:

"2. Refusing to condone delay can result in a meritorious matter being thrown out at the very-threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties."

Relying on some of the above noted decisions of the Hon''ble court including the Hon''ble Apex Court, learned court below preferred to allow the application for condonation of delay in filing the Title Appeal No. 07 of 2003 but subject to payment of costs of Rs. 10,000/- to the petitioner herein.

Taking into consideration the facts and circumstances of the case, I cannot take a different view in the matter and the revisional application preferred against the order impugned being devoid of merit is liable to be dismissed.

Hence, this revisional application stands dismissed accordingly. The Order No. 64 dated 1st October, 2013 stands affirmed.

Considering the fact that the litigation between the parties lasted for long, learned court below is requested to make endeavour for disposal of the same as quickly as possible, preferably within a period of six months from the date of communication of this order.

I make no order as to costs.

Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocate of the parties on usual undertaking.