Sukumar Das (Majhi) And Another vs Pankoj Das (Majhi) And Others

Despite service of notice, none appears on behalf of the caveator. Let the receipt of the said service filed in Court today be kept with the record. The

grievance of the petitioners is that the petitioners obtained an eviction decree against the opposite parties and got the same executed. In the meantime,

the judgment-debtors/opposite parties preferred an appeal against the eviction decree bearing Title Appeal No.1344 of 2014.

Such appeal being dismissed for default, the opposite parties took out an application under Order 41 Rule 19, thereby giving rise to Miscellaneous Case

No.108 of 2016. An application for condonation of delay in filing such miscellaneous case also accompanied the said miscellaneous case. By virtue of

the impugned order dated April 13, 2018 the said application for condonation of delay was allowed on contest with costs of Rs.1,000/-.

It is submitted by the petitioners that in view of the decree being satisfied, the appeal has virtually become infructuous and would only be an exercise

in futility. The petitioners submit that this aspect of the matter was not even considered by the appellate court while allowing the application for

condonation of delay.

A perusal of the impugned order reveals that the appellate court painstakingly adverted to all materials on record and the contentions of the parties and

arrived at a reasoned finding that there was sufficient cause for the delay occasioned by the opposite parties. Accordingly, the appellate court allowed

the application for condonation of delay and also awarded cost of Rs.1,000/- to compensate the decree-holders.

However, while the appellate court entirely dealt with the application for condonation of delay, there does not appear to be a single line dedicated to

the merits of the miscellaneous case itself. Obviously, the miscellaneous case could not have been taken up on merits prior to allowing the application

for condonation.

Erroneously, however, the appellate court not only allowed the application for condonation of delay, but went one step further in disposing of the

miscellaneous case itself and directing readmission of the appeal in its original form and number. There is substance in the contention of the petitioners

that the miscellaneous case itself could not be disposed of without hearing both sides.

As such, C.O. 970 of 2018 is disposed of by modifying the impugned order, to the effect that only the application under Section 5 of the Limitation Act

was allowed on contest with costs of Rs.1,000/- by virtue of the said order. The miscellaneous case still survived and is surviving.

Accordingly, the Additional District Judge, Third Court at Howrah is directed to hear out the Miscellaneous Case No.108 of 2016 on merits and to

dispose of the same as expeditiously as possible, preferably within three months from the date of communication of this order to the appellate court.

The portion of the impugned order, whereby the said miscellaneous case was disposed of and the appeal was readmitted in its original form and

number, is set aside. There will be no order as to costs.