Smt. Chabirani Dinda & Ors. vs Sri Pachugopal Dinda & Ors.

Leave is granted to the learned Advocate on record of the appellant to correct the Cause Title of the Memorandum of appeal.

This Second Appeal is directed against an order being No. 37 dated 16th November, 2015 passed by the Learned Civil Judge (Senior Division) 1st Court at Contai in Title Appeal No.51 of 2009 at the instance of the plaintiffs/appellants.

By the impugned order the plaintiffs'' application for condonation of delay was rejected. Hence this appeal was filed.

Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure.

The plaintiffs/appellants were aggrieved by the final decree passed in the partition suit. Such final decree was passed on 16th September, 2008. They did not apply for the certified copy within the period of limitation. As such, they are not entitled to get the benefit of the time which was spent by them for obtaining the certified copy of the final decree passed by the learned Trial Judge. The time for filling the First Appeal expired on 15th October, 2008. The First Appeal was filed on 4th December, 2009. Thus, there was about 14 months delay in filling the First Appeal before the learned First Appellate Court. The only explanation which was given by the appellant for such long delay was that the appellant was ill during the period from 10th October, 2007 to 4th December, 2009. Since neither the nature of illness was disclosed by the appellant in the said application nor the name of the Doctor who treated the appellant during the period of his illness was mentioned therein nor any medical certificate certifying the illness of the appellant during the relevant period was produced by the appellant, the learned Trial Judge rejected the plaintiffs'' application under Section 5 of the Limitation Act disbelieving the explanation given by the appellant for such long delay.

The learned Trial Judge also recorded in the impugned order that even during the said period, the said plaintiffs/appellants not only executed a deed of gift in favour of the Prabir Dinda and Pranabesh Dinda and presented the said deed on the same day before the Registering Authority but he also affirmed an affidavit by appearing before the Sherestadar of the learned Civil Judge (Junior Division), 1st Additional Court in connection with Title Execution Case No.1 of 2009 on 29th October, 2009.

Considering the aforesaid facts, the learned Trial Judge formed an opinion that the appellant failed to explain the reason which prevented him from filing the said appeal within the period of limitation.

We do not find any illegality and/or infirmity in such findings of the learned First Appellate Court.

However, Mr. Chatterjee learned Counsel appearing for the appellants tried to impress upon us that some non-suited properties were included in the final decree and for inclusion of such non-suited properties in the final decree, the very foundation of the final decree was shaken. He, thus, submits that such final decree cannot be retained, inasmuch as no technicality far less the law of limitation can stand in the way of reopening of final decree for rectifying such defect in the final decree. He pointed out that two non-suited plots were included in the final decree. Those two plots are plot No. 875 and plot No. 506.

On perusal of the materials on record, we find that plot No. 875 was not a non-suited property. Plot no. 875 was included within the hotchpot of the partition suit. The said plot was mentioned in the schedule of the plaint. Preliminary decree was also placed in respect of the said plot of land. Final decree was also passed in respect of the said plot of land. As such, we cannot agree with Mr. Chatterjeee that plot No.875 which was included in the final decree was a non-suited property.

However, we find some substance in the contention of Mr. Chatterjee, that plot No. 506 was not a suit property. We find that the plot No. 506 has been included in the final decree. However, on further scrutiny of the records, we find that plot No.546 was the suit property. The plot No.546 was also included in the final decree which was drawn up on the Stamp Paper by the learned First Appellate Court. However, we find some error in the Commissioner''s report. In the Commissioner''s report, there was some clerical mistake as instead of mentioning the suit Plot No. 546, the Commissioner mentioned the said plot as 506.

However, the area of the land in plot No. 546 was mentioned correctly in the Commissioner''s report. Nothing could be shown to us that even the suit plot No. 546 was not taken into consideration by the Commissioner while measuring the said plot in the final decree. Nothing has been shown to us that plot No.506 was taken into consideration by the Commissioner while measuring the suit plot. On the contrary, we find from the filed book prepared by the Commissioner that plot No.546 was taken into consideration and there was no reference of Plot No.506 in the proceeding before the Commissioner excepting the error committed by the Commissioner as mentioned above.

Such being the position, we are of the view that such mistake was crept in the Commissioner''s report due to clerical mistake. Such mistake, in our view, can be corrected by the Court as the Commissioner''s report was made a part of the final decree.

Since there is nothing wrong in the final decree, so far as the description of one of such suit properties being plot No.546, is concerned and the final decree cannot be vitiated due to wrong mentioning of the said dag in the Commissioner''s report we hold that unless the reason for the delay is sufficiently explained by the appellants, the final decree proceeding need not be reopened for the technical objection which is so raised by the appellants herein.

Since we agree with the findings of the learned First Appellate Court that the reason which prevented the appellants from presenting the First Appeal within the prescribed period of time has not been sufficiently explained by the appellants in the application under Section 5 of the Limitation Act, we decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.

The appeal is, thus, dismissed.

In view of dismissal of this appeal in the matter as aforesaid, no further order need be passed on the application being CAN No 1147 of 2016. The said application is thus, deemed to be disposed of.

Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.