Rana Roy Choudhury vs Sabitry Bhowmik And 5 Ors

Heard Mr. G. N. Sahewalla, the learned Senior Counsel assisted by Ms. S. Katakey, the learned counsel for the petitioner. Also heard Mr. A. K. Gupta, the learned counsel for the respondent Nos. 1, 2, and 3.

In this revision petition order dated 22.10.2014 passed in Misc.(J) Case No.13/2014 arising out of Title Appeal No.10/2012 in the Court of learned Civil Judge at Tinsukia is put under challenge. The predecessor-in-interest of the present respondent, Rani Bhowmik filed Title Suit No.26/2002 against the predecessor-in-interest of the present petitioner in the Court of learned Munsiff No.1 at Tinsukia. At the stage plaintiff's evidence, the predecessor-in-interest of the respondents on various dates failed to appear to face the cross-examination and finally vide order dated 19.04.2008 the evidence-in-chief was expunged. Subsequently, vide order dated 05.05.2008 the said Title Suit No.26/2002 was dismissed. The present petitioner, on the other hand, filed Title Suit No.48/2012 in the Court of learned Munsiff No.1 at Tinsukia by the present petitioner with respect to the same suit land which was the subject matter of Title Suit No.26/2002 against the predecessor-in-interest of the respondents. On receipt of summons by the predecessor-in-interest of the present respondents of Title Suit No.48/2012, she filed Title Appeal No.10/2012 against the dismissal order dated 05.05.2008 passed in Title Suit No. 26/2002. The said appeal was accompanied by a delay condonation petition No.2145/2012 dated 09.10.2012 which was registered as Misc.(J) Case No.13/2014. The said petition was under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 4 years, 5 months and 3 days. The contents and the grounds for condonation of delay are reproduced hereinbelow:-

"1. That the appellant/plaintiff has filed the present appeal against the judgment and order dated 19/04/2008 and decree dated 05/05/2008 passed by the Learned Munsiff No. 1 in Title Suit No. 26 of 2002.

That in the aforesaid case the plaintiff's examination in chief was expunged as she could not appear for cross examination. The judgment and decree was passed by the Ld. Munsiff No.1, Tinsukia, without having any evidence on record.

That the appellant/plaintiff is a widow aged about 82 years and have been suffering from various ailments. She has been undergoing treatment both at Tinsukia as well as at Assam Medical College, Dibrugarh.

That in the meantime the appellant/plaintiff had become mentally incapable of remembering things as she was suffering from Hepatitis, D.M. Gastritis, Depression and Dementia under the treatment of Dr. S. Mukherjee, Dr. A. Prasad, Sr. Medical Officer, AMC, as well as AMCH, Dibrugarh, since 19/01/2008 and is unable to perform her normal activities and due to the same she could not contact her Lawyer.

(Medical documents enclosed herewith)

That after long treatment she regained her mental faculties few days back.

That on 14/09/2012 she came to know about institution of Title Suit No.48/2012 before the Court of the Munsiff No.1, Tinsukia, and contacted her lawyer regarding the earlier suit filed by her. She has been informed that the earlier suit was dismissed on contest although she could not adduce any evidence in the case.

That on being informed and advised she has preferred this appeal after a delay of about 4 years 5 months and 3 days, it is not owing to any default or laches on the part of the appellant/plaintiff. That the delay in filing this appeal by the appellant/plaintiff was due to circumstances beyond her control.

That unless the appeal is admitted after condoning aforesaid delay the appellant/plaintiff shall be highly prejudiced."

The appellate court issued notice to the present petitioners who filed the written objection against the delay condonation petition. The learned first appellate court vide the impugned order dated 22.10.2014 condoned the delay and the appeal was directed to be admitted. The learned court below came to the finding that for the delay of 4 years, 5 months and 3 days, the petitioner explained the cause that she was medically unfit and the same was due to circumstances beyond her control.

Mr. Sahewalla, assailed the said satisfaction of the first appellate court on the ground that the petition for condonation of delay is itself cryptic without mentioning any reasoned causes. The certified copies of the bunch of documents relied by the petitioner is produced by the learned counsel for the petitioner and referring the same Mr. Sahewalla submits that there is not even a single document to support that the petitioner was suffering amnesia and that she regained her mental faculties just few days prior to filing of the said petition. It is further submitted that the court below without considering the materials on record simply came to the finding that the petitioner was medically unfit which was beyond her control. The learned court below failed to consider that the period sought to be condoned is above 4 years and in such a situation the court below ought to have been strict in examining the causes shown by the petitioner and whether the said causes are sufficient within the term of "sufficient causes" under Section 5 of the Limitation Act, 1963. Accordingly, Mr. Sahewalla sought for interference by setting aside the said order.

Mr. Gupta, on the other hand, submits that the court below was satisfied with respect to the causes shown by the petitioner and applied its discretion which ought not to be interfered by the revisional court. It is further submitted that sufficient medical documents were produced before the court and then only the court below has drawn its satisfaction with respect to the medical condition of the petitioner and as such, no interference is required by this Court. In support of his submission, Mr. Gupta relies N. Balakrishnan -vs.- M. Krishnamurthy reported in (1998) 7 SCC 123 and submits that length of delay is no matter rather acceptability of the explanation is the only criterion and in fit cases, delay of a very long duration can be condoned. Considering the explanation once the court accepts the explanation as sufficient and applied its discretion revisional court ought not interfere in such discretion. He also relies Collector, Land Acquisition, Anantnag and another -vs.- Mst. Katiji and others reported in AIR 1987 SC 1353 and submits that while deciding an application under Section 5 of the Limitation Act, 1963 a pedantic approach by the court is not required for day to day explanation which the court below rightly accepted the said principle and condoned the delay.

Considered the submissions of the learned counsel. The learned court below was satisfied with the causes shown by the petitioner while condoning the delay of more than 4 years. The court below is totally silent as to why it was satisfied to accept the causes shown by the petitioner. Relying the decision from this Hon'ble Court, the learned court below held that a liberal approach is required for condonation of delay and the same falls within the category of "technical matter". As the appeal was preferred under such circumstances, if the delay was not condoned the same would amount to doing injustice to the petitioner. I am unable to accept the said explanation by the court below. In Esha Bhattacharjee -vs.-Raghunathpur Nafar Academy and Others, reported in (2013) 12 SCC 649, the Hon'ble Apex Court held that there is a distinction of approach of a court between inordinate delay and the delay of short duration or few days. In the former the doctrine of prejudice is attracted whereas in the latter case the same may not be attracted. It was further held that the former one warrants strict approach whereas the second one calls for a liberal approach. In addition to that the conduct or the behavior of the party is also important.

In the present case in hand, the delay is more than 4 years. On the other hand, the Limitation Act prescribes 30 days for filing an appeal in the first appellate court. The petitioner wants to extend the said 30 days period to more than 4 years and in the process the court requires exercising its extraordinary power in order to extend the 30 days limitation period prescribed by the statute beyond four and a half years. The grounds must be acceptable and must have some basis to exercise that extraordinary power against the prescription of the statute. In such a situation and keeping in view the factual matrix the grounds must be supported by relevant documents identifying the decease diagonised and the medicine prescribed therein. Here in this case, the petitioner lost her memory and subsequently she regained her mental faculties but on perusal of the certified copies of the documents produced by the respondents I failed to find any of the documents supporting the illness pleaded in the petition. As held by the Hon'ble Apex Court the doctrine of prejudice applies in this present case. If the delay is condoned on the principles of equity it would cause losses to the present petitioner inasmuch as owing to the act of acquiescence in preferring an appeal by the respondents a right has accrued upon the present petitioners which is consequential to the statutory prescription of time. The manner in which the court below condoned the delay, it really violates the doctrine of prejudice so far the present petitioner is concerned.

Accordingly, in my considered opinion, this is a fit case for interference by this Court by setting aside the impugned order dated 22.10.2014 passed in Misc.(J) Case No.13/2014 in Title Appeal No.10/2012.

Accordingly, the impugned order is set aside and this revision petition succeeds. Interim order passed if any, stands vacated.