Promode Kumar Daw vs Prabir Kumar Ghosh

Malay Kumar Basu, J.—This revisional application is directed against Order No. 90 dated November 27, 1995 passed by learned Assistant District Judge, 4th Court, Alipore in Misc. Case No. 50/94 arising out of T.S. No. 21 of 1987 in that Court.

By the said order the Assistant District Judge allowed a petition under Order 9 Rule 13 of the CPC along with another petition u/s 5 of the Limitation Act thereby cordoning the delay in filing of the petition under Order 9 Rule 13 of the Code and thereafter allowing the letter on merit also.

Being aggrieved by this order the Plaintiff of T.S. No. 21 of 1987 which had been dismissed ex parte as against Defendant No. 2 (decreed on contest as against Defendant No. 1) has preferred the present revisional application challenging the said order as erroneous, illegal and unsustainable.

The revisional application has been contested by Defendant No. 2.

Defendant No. 2''s case before the Court below was that he filed a written statement in the suit to contest it and his elder brother being Defendant No. 1 was entrusted by him with the responsibility to look after his case since he being employed as a Driver of Mail Train was posted at faraway place in Bihar. But unfortunately his elder brother betrayed him by not looking after his interest while the suit was heard and ultimately the suit was decreed on contest as against Defendant No. 1 but ex parte as against him, and as a result thereof he suffered great prejudice and he filed a petition under Order 9 Rule 13 of the Code before the Trial Court and since he filed it late he submitted a petition u/s 5 of the Limitation Act. for condonation of delay for about 800 days.

The petition was contested by the Plaintiff.

The Trial Court after considering the evidence on record allowed both the petitions.

Mr. Roy Choudhury, learned Advocate appearing on behalf of the Petitioner criticizes the impugned order of the Court below by contending that the Court has not at all taken into consideration the fact that there was absolutely no explanation in respect of the long two years, namely, from May 1992 to August, 1994 during which Defendant No. 1 sat totally idle even after knowing that the suit had been decreed ex parte. He draws the attention of the Court to the cross-examination of the P.W. 1 (Defendant No. 1) where he has admitted that he came to know about the ex parte decree from the learned Advocate P.K. Basu on May 20, 1992.

Mr. Roy Chowdhury express his surprise at the fact that the learned Trial Judge did not consider it at all necessary to give reasoning on this gap of two years which remains totally unexplained. Nowhere within four corners of the evidence of Defendant No. 1 Petitioner made any iota of attempt explaining away his inaction in the matter of filling of application under Order 9 Rule 13 of the Code. Mr. Roy Chowdhury also refer to the requirement of law. That the Trial Court has to record his satisfaction as to the sufficiency of the explanation given for the purpose of condoning the delay.

In support of his contention he relies upon the decision in P.K. Ramachandran Vs. State of Kerala and Another, in which Their Lordships have held that in case of delay where there has been delay of about 565 days in its filing and prayer for condonation of the same has been filed, the Court in exercising its discretion 1st record its satisfaction that the explanation for the delay was either reasonable or satisfactory and where no explanation much less a reasonable or satisfactory, explanation offered by the Respondent for condonation of delay the High Court is not justified in exercising its discretion to condone the delay by merely observing that taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, it has been inclined to allow the petition.

Mr. Roy Choudhury cites another recent judgment Vedavai @ Vaijayantabai Baburao Patil v. Shantaram Baburao Patil and Ors. 2001 S.A.R. (Civil) 617 S.C. in which it has been held that while exercising discretion in the matter of condonation of delay the Court should adopt a pragmatic approach distinguishing a case where delay is inordinate from a case where delay is of few days only.

It has been further held that whereas in the former case the consideration of prejudice to the other side will be a relevant factor so that the case calls for a mere cautions approach, in the latter case no such consideration may arise and such a case deserves a liberal approach.

Mr. Roy Choudhury seeks to drive home the point that since this case falling within the former category, the strict view should be taken while considering the question of condonation of delay of more than 800 days.

As against this, Mr. Banerjee appearing on behalf of the O.P. has contended that this Court in its revisional jurisdiction is debarred from entering into the scrutiny of the finding of the fact of the Trial Court condoning the delay and allowing a petition u/s 5 of the Limitation Act.

In support of his contention Mr. Banerjee refers to the decision in Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, . There it was held, by a Three Judges Bench that the question whether there had been sufficient cause for the condonation of delay was exclusively within the jurisdiction of the Trial Court and that Court could decide rightly or wrongly and the High Court fell in error by entering into and dwelling upon such finding of fact.

Mr. Banerjee further relies upon another reported decision of the Apex Court in this regard of later origin in which it has been held that Rules of Limitation are not meant to destroy the right of the parties, but they are meant to see that parties do not resort to dilatory tactic, but seek their remedy promptly and further the expression ''sufficient cause'' u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice and where the Trial Court rejected the application u/s 5 of the Limitation Act, but the High Court in exercising its revisional jurisdiction interfered with the finding of the Trial Court and upset the same the High Court fell into error thereby.

It was further observed in this case that in every case of delay there can be some lapse on the part of the litigant concerned and that alone is not enough to turn down his plea and to. shut the door against him and if the explanation did not smack of mala fides or it was not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor.

In the present case the learned Assistant District Judge in the impugned judgment has sufficiently made it clear that considering the evidence he was satisfied that delay was not the. result of any dilatory tactics of the Petitioner/Defendant, and the explanation was sufficient and, therefore, he. condoned it.

Against such finding of fact as to the question of condenation of delay it would not be, I am afraid, permissible on the part [of this Court in its revisional jurisdiction to set aside that finding of fact and allow the revisional application.

Both decisions which Mr. Roy Choudhury have relied upon are not in relation to Appeals and Revisional application and, what is mere, the decision referred to by Mr. Banerjee appears to be of a larger Bench of the Apex Court and in that view of the matter it should prevail upon any contrary decision of that Court of smaller Bench. Therefore, I find sufficient justification in coming to the conclusion that in the present case the finding arrived at by the Trial Court regarding the condonation of delay and consequent finding as to the acceptance of the petition under Order 9 Rule 13 of CPC should not be interfered with.

However, since the original suit seems to be pretty old, I direct the Court below to dispose of the same within a specified period, namely, within four months from the date of communication of this order without fail.

In the result, the revisional application fails and is dismissed. The impugned order of the Court below is hereby affirmed.