Sanjiv Dey vs Saivesh Layak

Sanjay Kumar Dwivedi, J

Heard  Mr.  Rajeeva  Sharma,  the  learned  Senior  counsel  appearing  on behalf of the petitioners and Mr. Rohan Mazumdar, the learned counsel appearing on behalf of the Opposite party no.1 and Mr Om Prakash the learned counsel appearing on behalf of the Opposite party nos.3 to 5.

This C.M.P has been filed for restoration of M.A. No.398 of 2018 to its original file which stood dismissed on 13.02.2020 for partial compliance of the order dated 29.01.2020.

Mr. Rajeeva Sharma, the learned Senior counsel appearing on behalf of the petitioners submits that the M.A. No.398 of 2018 was preferred against the order dated 24.01.2017 passed by learned District and Additional Sessions Judge-I, Dumka in Probate Case No.2 of 2010 which was rejected. He submits that the said M.A was defective and a peremptory order was passed by the coordinate Bench on 29.01.2020 for removing the surviving defects. He submits that partially defects were removed, however, it appears that inadvertently the further surviving defects were not removed and in view of that, in light of the peremptory order the said M.A was dismissed. He further submits that the delay has occurred in filing of the present CMP of 841 days and for condoning the said delay I.A. No.10227 of 2024 has been filed. He submits that in support of the I.A. further supplementary affidavit has been filed wherein it has been disclosed that the order of the coordinate Bench passed on 29.01.2020 and the said M.A was dismissed on 13.02.2020. He further submits that in the meantime, Covid-19 pandemic has occurred and further the petitioners herein were under impression that the appeal is surviving and later on it has transpired on inspection of the file that the said appeal was dismissed for non-compliance of the Court’s order. He submits that in view of that the delay may kindly condoned and the said M.A may kindly be restored to its original file.

Mr. Rohan Mazumdar, the learned counsel appearing on behalf of the Opposite party no.1 as well as Mr. Om Prakash the learned counsel appearing on behalf of the Opposite party nos.3 to 5 jointly opposed the prayer and submits the explanation is not made for condonation of said delay and in view of that the said condonation petition may kindly be rejected.

It  is  an  admitted  position  that  the  said  M.A  was  dismissed  for  non-compliance of the Court’s order which was not even admitted as yet. It is well known that in the year 2019 the Covid-19 pandemic has occurred and under the statutory provisions the delay has been condoned by the Hon’ble Supreme Court in suo-motu case. It is further disclosed that the petitioners were under the impression that the M.A was surviving and later on it has transpired on inspection of the file that the said appeal was dismissed for non-compliance of the Court’s order.

From the record it transpires that the registered Will was sought to be probated in the probate case which has been rejected by the learned court which is under challenge in the said Miscellaneous Appeal. The condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain others cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The words ‘sufficient cause’ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. The time -limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.

In this background, what has been discussed hereinabove with regard to condonation of delay, the Court finds that sufficient ground is made out to condone the delay and as such the delay of 841 days in filing the instant CMP is hereby condoned. Accordingly, I.A. No.10227 of 2024 is allowed and disposed of.

In view of the above and further the averments made in the instant CMP, the Court finds that sufficient ground is made out to restore the M.A. No.398 of 2018 to its original file. Accordingly, M.A. No.398 of 2018 is restored to its original file. This CMP is allowed and disposed of.