Ramprasad Sadhukhan vs Prova Paul

Bibek Chaudhuri, J

CAN 6964 of 2018 is an application under Section 5 of the Limitation Act filed by the defendant/appellant/petitioner praying for condonation of

delay of 165 days in filing the second appeal being SAT 306 of 2018 before this Court.

It is stated by the petitioner in the instant application that the opposite party as plaintiff instituted a suit for eviction against the petitioner being Title

Suit No.151 of 2011 before the 1st Court of the learned Civil Judge (Junior Division) at Baruipur. The said suit was decreed on contest by the trial

court on 21st December, 2013. The defendant took out an appeal before the learned Civil Judge (Senior Division), 2nd Court at Baruipur which was

registered as Title Appeal No.17 of 2017. The said appeal was dismissed on contest by a judgment and decree dated 17th September, 2017 passed by

the learned Civil Judge (Senior Division), 2nd Court at Baruipur. In order to prefer an appeal before this Court against the judgment and decree passed

by the First Appellate Court affirming the judgment and decree passed by the trial court, the petitioner approached the Advocate on Record in the first

week of January, 2018. The learned Advocate advised him to obtain a certificate copy of the judgment and decree dated 21st December, 2013 passed

by the learned trial court. The petitioner applied for obtaining the said certified copy of the judgment and decree passed by the trial court but he was

informed by the concerned department that many records of the said court including the record of Title Suit No.151 of 20111 were untraceable. The

petitioner filed information slip to get information about whereabouts of the records, but no information was supplied by the courts below.

Unavailability of records of disposed and pending cases in Baruipur Court became a burning issue and the situation was so aggravated that the learned

Advocates went on strike over those issues to bring the anomalies to the notice of the higher authorities. In or about the first week of July, 2018, the

situation was made under control and the petitioner got the certified copy of the judgment and decree dated 21st December, 2013 only on 13th July,

2018. Immediately, thereafter the second appeal was filed on 18th July, 2018 after a lapse of 165 days from the statutory period of limitation. It is

submitted by the petitioner that there was no intentional laches on the part of him and the delay was caused due to unavailability of the judgment and

decree dated 21st December, 2013. Therefore, the petitioner has prayed for condonation of delay in preferring the second appeal.

The opposite party has filed an affidavit-in-opposition denying all allegations made out by the petitioner in his petition. It is specifically pleaded by the

opposite party that in order to file a second appeal judgment and decree of the trial court is not necessary, since the second appeal is required to be

filed against the judgment of the learned First Appellate Court. The opposite party has also disputed that the petitioner was not supplied with the

judgment and decree of the trial court by his learned Advocate. The petitioner also failed to establish his bona fide because when he allegedly did not

get the certified copy of the judgment and decree dated 21st December, 2013 he did not make any complaint before the learned District Judge or

before this Court against the concerned department. When the instant application initially came up for hearing before a Coordinate Bench, the

Hon’ble Judge directed the learned District Judge to submit a detailed report regarding delivery of certified copies of the judgment and decree of

the trial court as well as the First Appellate Court to the petitioner. The learned District Judge obtained a report from the learned Additional District

Judge, Baruipur who clearly informed that the certified copy of the judgment and decree of Title Suit No.151 of 2014 was supplied to the petitioner on

15th January, 2014 and on 20th January, 2014 respectively. The judgment and decree of Title Appeal No.17 of 2017 was supplied on 1st November,

2017 to the petitioner. Therefore, the claim of the petitioner that delay was caused in filing the appeal for want of the certified copy of the judgment

and decree of the trial court has no leg to stand accordingly the petitioner has prayed for rejecting the application under Section 5 of the Limitation

Act.

Mr. Jiban Ratan Chatterjee, learned Senior Counsel on behalf of the petitioner frankly admits that in order to file a memorandum in second appeal,

judgment and decree of the trial court is not necessary. The certified copies of the judgment and decree of the First Court of Appeal are sufficient for

filing the memorandum of appeal. However in the instant case, fact situation is something different. It is not that the petitioner was given to understand

that judgment and decree of the trial court is necessary for preferring the appeal. The learned Advocate on Record wanted to see the judgment and

decree of the trial court to prepare the memorandum of appeal. The certified copies of the said judgment and decree were not supplied to the

petitioner by the concerned department of Baruipur Court. Therefore, delay was caused to prepare the memorandum of appeal and the petitioner has

no intentional laches in the instant case.

It is further pointed out by Mr. Chatterjee that the report of the learned District Judge, South 24 Parganas on the issue of supply of the certified

copies of judgment and decree of Title Suit No.151 of 2011 is misleading because the report states the date of supply of the certified copies of the

judgment and decree in the said suit which the petitioner obtained in order to prefer the first appeal.

Mr. Mrinal Ghosh, learned Advocate for the opposite party, on the other hand, submits that the petitioner has failed to prove his material allegation

that he could not get the certified copies of the judgment and decree passed by the trial court as a result of agitation and cease work observed in

Baruipur Court. The petitioner preferred the appeal after 165 days of the statutory period of limitation. In view of such circumstances, the petition is

liable to be rejected.

Having heard submission made by the learned Advocates for the petitioner and the opposite party and on careful perusal of the application as well

as affidavit-in-opposition, I am in agreement with Mr. Chatterjee, learned Senior Counsel on behalf of the petitioner that there was no intentional

laches of the petitioner in preferring the appeal after the period of limitation. A litigant acts under the advice of his Advocate. The Advocate on

Record of the petitioner instructed him to bring the certified copies of the judgment and decree of the trial court when he came to him to prefer the

second appeal. A litigant is not expected to know that a second appeal can be filed only with the judgment and decree passed by the First Appellate

Court. The petitioner acted bonafide under the instruction of his learned Advocate and went to Baruipur Court to get the certified copies of the

judgment and decree passed by the trial court. However, he was not supplied with said certified copies of the judgment and decree prior to 13th July,

2018 and the memorandum of appeal was filed on 18th July, 2018. The explanation given by the petitioner is sufficient and trustworthy. Under such

circumstances, I am of the considered view that the petitioner has been able to establish sufficient cause for delay in filing the appeal and such delay is

to be condoned.

Accordingly the application under Section 5 of the Limitation is allowed on contest without cost.

Delay of 165 days in preferring SAT 306 of 2018 is condoned.

The record of the instant appeal be placed before Division Bench having determination for hearing under Order 41 Rule 11 of the Code of Civil

Procedure.