Safdar Ali & Others vs Mahbooban Bibi & Others

Ashis Kumar Chakraborty, J

The petitioners have filed this application under Section 5 of the Limitation Act, 1963 for condonation of the delay of 820 days in filing the second appeal against the judgment and decree dated June 14, 2016 passed by the learned District Judge, Andaman and Nicobar Islands, Port Blair in Title Appeal No.30 of 2013.

The petitioners filed the suit for declaration and recovery of possession, against the respondents before the learned Civil Judge (Senior Division), Port Blair. By a judgment and decree dated September 30, 2013 the learned Civil Judge(Senior Division), Port Blair dismissed the said Suit. The petitioners carried the said judgment and decree dated September 30, 2013 in appeal before the First Appellate Court. The appeal was admitted and numbered as Title Appeal No.30 of 2013. By the judgment and decree dated June 14, 2016 the First Appellate Court dismissed the appeal filed by the petitioners on merit.

The grounds urged by the petitioners in this application for condonation of the inordinate delay of 820 days are that it was the petitioner no.3 who was all along proceeding with the suit and the appeal for himself as also on behalf of the petitioner nos.1 and 2. The petitioner no.3 is a senior citizen and a cardiac patient. The petitioner no.3 sustained a cardiac stroke and he was taken to Apollo Hospital at Chennai for treatment. Since the petitioner no.3 is required to visit Chennai for his regular check-up, the advocate informed the petitioner no.3 that he need not regularly come to Court and the petitioner no.3 was fully dependant upon his said advocate. The petitioner no.3 was all along informed by the said advocate that whenever the appeal will be taken up for hearing the petitioners will be informed of the same. According to the petitioners, only from the rumours spread by the respondents they came to learn that their appeal has been rejected by the learned First Appellate Court. Thereafter, the petitioner no.3 met the advocate engaged to conduct the appeal before the First Appellate Court but he seemed to be unaware of the fate of the appeal. After two days said advocate informed the petitioner no.3 that the appeal had been dismissed and he returned the case file to the petitioners. After taking help of some other advocate the petitioners tried to get the status of the case and came to know that the appeal had already been dismissed on June 14, 2016. Thereafter, on November 9, 2018 they applied for certified copy of the judgment and decree passed by the First Appellate Court which was delivered on November 20, 2018. According to the petitioners, the delay in filing of the appeal, caused due to not having any information from their advocate and as soon as they got the information they filed the application for certified copy of the judgment and decree passed by the First Appellate Court.

Urging these facts, the petitioners claim that there was no intentional delay on their part to file the present appeal and this Court would condone the delay of 820 days to prefer the second appeal challenging the judgment and decree passed by the First Appellate Court. In support of their prayer for condonation of delay, the learned counsel appearing for the petitioners cited the decisions of the Supreme Court in the cases of Special Tehsildar, Land Acquisition, Kerala Vs. K.V.Ayisumma reported in Air 1996 SC 2750, State of Bihar & others Vs. Subash Singh reported in AIR 1997 SC 1390, M.K.Prasad Vs. P.Arumugam reported in AIR 2001 SC 2497 and Esha Bhattacharjee Vs. Managing Committee of Raghunathpur N. Academy and others reported in (2013) 12 SCC 649.

However, a strong objection was raised by the respondents to the prayer of the petitioners for condonation of the long delay of 820 days. Learned counsel appearing for the respondents submitted that the allegations made by the petitioners that it was the petitioner no.3 alone who was looking after the proceedings of suit and the appeal for himself as also on behalf of the petitioner nos.1 and 2 is not true. In this regard, he produced a copy of the application filed by the petitioners, as the appellants before the learned First Appellate Court under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (n short "the Code") which was affirmed by the petitioner no.2, namely Mustaq Ali. It was further pointed out that in an application filed by the defendant no.3, before the learned Trial Judge under Order VIII Rule 1A of the Code the present petitioners, as plaintiffs filed a written objection which was affirmed by Shri Safdar Ali, the petitioner no.1 herein. In this connection, the learned counsel for the respondents produced a copy of the written objection filed before the learned Trial Judge in the said application under Order VIII Rule 1A of the Code. The respondents also produced a copy of the Memorandum of Appeal filed by the present petitioners before the learned First Appellate Court challenging the Trial Court decree and pointed out that the same was also signed by all the three petitioners. By referring to the medical prescriptions of the petitioner no.3 the respondents submitted that from the year 2012 the petitioner no.3 is having his medical check-ups at Port Blair. It was further submitted by the respondents that the petitioners are residing at Lambaline, Port Blair and the distance between the petitioners' residence and the Court of District Judge, Port Blair, i.e. First Appellate Court, is less than 3 kilometers. Thus, it is absolutely unbelievable that the petitioners did not visit their advocate, namely, Shri Ananda Halder who has his chamber in the District Court. It was submitted that even the petitioners have not disclosed any communication addressed to the advocate who was all along conducting the suit as well as the first appeal, complaining any inaction on his part to inform them of dates of the hearing of the appeal or the result of the appeal. It was argued for the respondents that from a reading of the judgment passed by learned First Appellate Court it is evident that advocate engaged by the present petitioners, argued the appeal before the First Appellate Court and made detailed submissions in support of the appeal. The petitioners have, however, after an inordinate delay of 820 days filed the present application with a prayer for condonation of delay by making out a frivolous case to malign the learned advocate namely, Shri Ananda Halder who also practices before this Court. It was strenuously urged that the case made out by the petitioners lacks bonafide and as such, this Court would not condone the inordinate delay of 820 days in filing of the appeal by the petitioners. The learned counsel appearing for the respondents also relied on the decisions of the Supreme Court in the case of Esha Bhattarcharjee (supra), Balwant Singh(Dead) -Vs-Jagdish Singh & others reported in (2010) 8 SCC 685.

In his reply, learned counsel appearing for the petitioners submitted that the petitioners have sufficiently explained the facts which prevented them from preferring the appeal against the judgment and decree passed by the First Appellate Court until December 22, 2018. The petitioners, however, could not dispute the assertion made by the respondents that the distance between their residence at Lambaline and the First Appellate Court is less than 3 kilometers.

In the case of Esha Ganguly(supra), the Supreme Court held that there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas, to the latter it may not be attracted and the inordinate delay warrants strict approach whereas the second calls for a liberal delineation. The Supreme Court further held that if the explanation offered for delay is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

In the case of Balwant Singh (supra) the Supreme Court held that the law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. The Supreme Court further held that the explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant.

In the present case, the petitioners have not disclosed the name of the advocate who was entrusted by them for conducting their case on their behalf before the First Appellate Court. However, from the records it appears that it was the same advocate namely, Mr. Ananda Halder, who represented the petitioners both before the Trial Court as well as First Appellate Court. From a reading of the judgment passed by the First Appellate Court it is apparent that the learned advocate engaged by the present petitioners had advanced detailed arguments on each point involved in the appeal. The said advocate is a regular practitioner before this Court also. However, the petitioners have not issued any letter to the said advocate complaining any alleged misconduct committed by him. Further, from the records produced by the respondents as mentioned above, it is evident that the petitioner nos. 1 and 2 had also filed and affirmed various pleadings before the Trial Court as well as First Appellate Court. Indisputably all the petitioners are residing at Lambaline, at Port Blair within 3 kilometers from the Court of the Learned District Judge.

From the documents disclosed in the application it appears that although the petitioner No. 3 had suffered heart-attack in the year 2012, but he has been undergoing the check ups at Port Blair. Therefore it is not plausible that the learned advocate would advise the petitioner no.3 need not regularly visit the Court, that too, when the distance between the petitioners' residence and the Court is less than 3 kilometers. Further, from the copies of the pleadings filed before the learned Trial Court, as well as the First Appellate Court, copies whereof were produced before this Court, I find strong substance in the contention of the respondents that the allegations that the petitioner no.3 alone was looking after the proceedings before the Trial Court and the First Appellate Court are belied by the records of both the Courts below.

In the case of M.K.Prasad(supra) cited by the petitioners it was the case of the petitioners in an application under section 5 of the Limitation Act that the learned advocate engaged by him to defend the suit for him left the matter without informing him, as a result whereof the defendant/applicant suffered an ex parte decree. In such factual matrix of the said case the Supreme Court condoned the delay in filing the application under Order IX Rule 13 of the Code for recalling of the ex parte decree upon payment of costs to the plaintiff/decree-holder. In the case of K.V. Ayisumma (supra) and Subhash Singh (supra) the Supreme Court held that since transaction of business of Government being done leisurely by officers at different levels while dealing with the application under section 5 of the Limitation Act by any Government authority the Court should not insist upon explanation of every day's delay. The said decisions of the Supreme Court relied by the petitioners have no application in the present case.

In the facts of the case as discussed above, I am unable to convince myself to accept that the explanation put forth by the petitioners for condonation of inordinate delay of 820 days in preferring the second appeal is bona fide or plausible or worth of exercising judicial discretion in their favour. When the petitioners have not approached this Court with clean hands, I find it would be unfair to allow the petitioners' prayer for condonation of the inordinate delay of 820 days and deprive the respondents of the valuable right that has accrued to them in law by virtue of the decision of the First Appellate Court.

For the reasons as aforesaid, the application, CAN 134 of 2018 stands rejected.

There shall, however, be no order as to costs.