Sumitra Debi Varma @ Sumitra Debi Varma vs Ghanshyam Das Agarwala

Bibek Chaudhuri, J

Legality, validity and jurisdictional propriety of an order dated 25th July, 2018 passed by the learned Additional District Judge, Fast Track-II,

Sealdah in Misc. Appeal No.6 of 2018 is impugned in the instant revision under Article 227 of the Constitution of India.

Factual backdrop is stated below:-

The opposite party as plaintiff instituted a suit for eviction, recovery of khas possession and consequential reliefs against the petitioner under the

provision of the West Bengal Premises Tenancy Act, 1997 which was registered as Ejectment Suit No.99 of 2005. The petitioner as defendant was

contesting the suit. During pendency of the said suit, the opposite party filed an application under Order 39 Rule 2A of the Code of Civil Procedure

which was registered as Miscellaneous Case No.10 of 2011. When the said case was pending for hearing, the learned trial judge passed an order

dated 5th January, 2013 fixing 9th April, 2013 “for further order in the suit after disposal of Misc Case No.10 of 2011â€. Miscellaneous Case

No.10 of 2011 was disposed of exparte on 4th March, 2013 by the learned trial judge and next date was fixed on 26th March, 2013 for peremptory

hearing of the suit ignoring the fact that hearing of the suit was previously fixed on 9th April, 2013. On 26th March, 2013 the learned trial judge,

however, adjourned peremptory hearing of the suit and fixed 9th April, 2013 for exparte hearing of the suit behind the back of the petitioner. The

petitioner did not take any step on 9th April, 2013 when the suit was fixed for exparte hearing on reasonable belief that the Misc Case No.10 of 2011

would be taken up first and then further date would be fixed for peremptory hearing of the suit. However, to her utter shock, she subsequently found

that Ejectment Suit No.99 of 2005 was decreed exparte in favour of the opposite party.

The petitioner came to know about such exparte decree, being passed by the learned trial judge and filed an application under Order 9 Rule 13 of

the Code of Civil Procedure accompanied by an application under Section 5 of the Limitation Act praying for setting aside of exparte judgment and

decree passed in Ejectment Suit No.99 of 2005 on condonation of delay.

The application under Order 9 Rule 13 of the Code of Civil Procedure was registered as Misc Case No.18 of 2013. The learned trial judge,

however, vide order dated 16th January, 2016 rejected the said application under Section 5 of the Limitation Act and consequently miscellaneous case

under Order 9 rule 13 of the Code of Civil Procedure against which the petitioner filed Miscellaneous Appeal No.6 of 2018 before the learned

Additional District Judge, Fast Track-II, at Sealdah. The aforesaid miscellaneous appeal also received the same fate of dismissal vide an order dated

25th July, 2018.

The petitioner has invoked the jurisdiction under Article 227 of the Constitution of India. Assailing legality, validity and propriety of the impugned

order dated 25th July, 2018.

Mr. Siddhartha Banerjee, learned Advocate on behalf of the petitioner submits that in Ejectment Suit No.99 of 2005, the opposite party filed an

application under Order 39 Rule 2A of the Code of Civil Procedure which was registered as Miscellaneous Case No.10 of 2011. The petitioner was

contesting the said miscellaneous case by filing written objection. However, she could not attend the trial court from first week of January, 2013 due to

her illness as she was suffering from acute arthritis and unbearable pain in her legs. She was practically not in a position to move and completely

bedridden. The husband of the petitioner is also aged, suffering from lumber spondylosis and had to undergo bypass surgery. The petitioner somehow

recovered from her illness sometimes on 21st May, 2013 and contacted the Lawyer in the trial court and came to know that Ejectment Suit No.99 of

2005 was decreed exparte. In her application under Order 9 Rule 13 of the Code of Civil Procedure the petitioner clearly stated that she could not

take step in the said suit due to her illness and acute pain in her legs due to arthritis. In order to prove her case, the petitioner wanted to examine one

Dr. Pradip Kumar Sharma who medically treated her during her illness. In order to examine the doctor on commission, the petitioner filed an

application under Order 26 Rule 1 of the Code of Civil Procedure. The learned trial judge rejected the said petition by an order dated 16th January,

2016 fixing 19th January, 2016 for evidence of the said medical officer with a condition that if the said doctor does not appear before the court on 19th

January, 2016, necessary order may be passed.

It is found from the record that Dr. Pradip Kumar Sharma who reportedly treated the petitioner during her illness wrote a letter to the Court on 18th

January, 2016 stating, inter alia, that he received notice to give evidence on behalf of the petitioner only on 18th January, 2016 and it is not possible for

him to attend the court to give evidence leaving his professional preoccupation and hospital duty. The learned trial judge rejected such request made by

the doctor with the following observation:-

“With respect to the opportunity to be given to the said doctor as prayed by him, I am inclined to hold that a doctor undertakes to abide by and

undertakes the liability to face cross examination when he issues a medical certificate being subject matter of litigation. The doctor is not doing any

favour to either side by giving evidence and the prayer made by him is too much of an expectation. If I allow the said prayer it will amount to paying

premium on negligence.â€​

With the above observation, the learned trial judge closed the evidence on behalf of the petitioner and fixed next date for examination of the witness

on behalf of opposite party. Ultimately vide an order dated 9th March, 2017, petitioner’s application under Section 5 of the Limitation Act was

rejected and consequently, Misc Case No.18 of 2013 under Order 9 Rule 13 of the Code of Civil Procedure was dismissed.

Mr. Banerjee next draws my attention to impugned order dated 25th July, 2018 passed by the learned Additional District Judge, Fast Track-II,

Sealdah in Misc Appeal No.6 of 2018.

I have carefully perused the impugned order passed by the learned Additional District Judge, Fast Track-II, Sealdah in Misc Appeal No.6 of 2018.

By a lengthy judgment the learned Judge held that the petitioner filed applications under Order 9 Rule 13 of the CPC along with an application under

Section 5 of the Limitation Act mainly on the grounds that she was physically ill and not in a position to take step in the suit at the relevant point of

time when it was decided exparte. Secondly, she was misguided due to preponment of date of peremptory hearing of the suit behind her back.

Learned Judge disbelieved the plea of illness of the petitioner considering her cross examination dated 31st January, 2015 where she stated that she

had no knowledge as to whether her landlord had filed any case of eviction against her or the grounds taken in the application under Order 9 Rule 13

of the CPC for setting aside the exparte decree. It is important to note here that the petitioner was not cross examined on her illness since January,

2013.

The learned Judge also held that the act of the petitioner cannot be expected to be bona fide because she could have file a revision before this

Court against the order passed by the learned trial judge rejecting the application filed by the petitioner for recording the evidence of the doctor who

examined her medically at the relevant point of time on commission. Thus, the learned Judge concluded that the petitioner failed to prove her case

regarding her illness since January, 2013. The learned Judge also took note of the fact that the learned trial judge considered a medical certificate,

though not exhibited, issued by the doctor who medically treated the petitioner to hold that the said medical certificate did not disclose that the

appellant was bedridden during the period when she failed to take step in the suit and eventually it was decreed exparte.

Finally the learned Judge held that though the dictum of the Apex Court as well as various High Courts including this Court on the question as to

what should be the approach in the matter of condonation of delay in filing an application under Order 9 Rule 13 of the CPC, that liberal approach

should be taken and delay should be condoned and court should take all endeavour to decide a dispute after giving opportunity to both the parties of

hearing. However, it was held by him that such liberal approach should not be stretched to such an extent, where instead of serving of interest of

justice, it would cause miscarriage of justice.

With this observation the learned Judge in the Appellate Court dismissed Misc Appeal No.6 of 2018.

Mr. Siddhartha Banerjee, learned Advocate for the petitioner submits that the petitioner is an old aged lady having little or almost no education.

She may not know the provisions of Order 9 Rule 13 of the CPC or Section 5 of the Limitation Act. Under such circumstances, if a lady, in her cross

examination states that she is not aware of institution of the suit for eviction or that the said suit was eventually decreed exparte or that an application

under Order 9 Rule 13 along with an application for condonation of delay for setting aside of exparte decree of the said suit were filed or not, all these

should not be accepted as want of bona fide on the part of the petitioner, mainly on the ground of which her application under Section 5 of the

Limitation Act was rejected. It is further submitted by Mr. Banerjee that in order to prove her case, the petitioner wanted to examine the medical

officer who treated her at the relevant point of time. She filed an application under Order 26 Rule 1 of the CPC for recording the evidence of the

doctor on commission. The said application was rejected by the learned trial court on 16th January, 2015 fixing 19th January, 2015 for his evidence.

The doctor received summons on 18th January, 2015 and wrote a letter to the learned trial judge stating, inter alia, that he was preoccupied for his

medical treatment and hospital duty so he prayed for fixing another date for his evidence. The learned trial judge rejected such prayer with the

following observation:- “The doctor is not doing any favour to either side by giving evidence and the prayer made by him is too much of an

expectation.†Mr. Banerjee submits that the above observation shows not only arrogance of the learned trial judge but such arrogance was mingled

with a preconceived notion that somehow the prayer of the petitioner would have to be rejected.

Therefore, Mr. Banerjee submits that the petitioner may be given an opportunity to prove her case adducing all the evidence in support of her.

Mr. Aniruddha Chatterjee, learned Advocate for the opposite party, on the other hand has vehemently opposed the instant application filed by the

petitioner. In support of her contention, he submits that the opposite party as plaintiff filed ejectment suit against the petitioner in the year 2005. Suit

was decreed exparte after a lapse of about eight years in 2013. In her application under Order 9 Rule 13 of the CPC, the petitioner stated that since

January, 2013, she could not move due to severe pains in her legs and was totally bedridden. Her husband was also suffering from different ailments

and her sons did not render any assistance to her due to antagonistic attitude relating to their family affairs. However, in cross examination on 31st

January, 2015 she stated that she was accompanied by her son to court. Her son and son-in-law look after her. Therefore, it is absolutely false to state

that the sons of the petitioner bear antagonistic attitude and do not render any help to her. She further stated in her cross examination that she did not

know the contents of application under Order 9 Rule 13 of the CPC or the application under Section 5 of the Limitation Act. She put her signature on

the said applications on being told by her son. According to Mr. Chatterjee, the court must take liberal approach while dealing with an application

under Section 5 of the Limitation Act or even under Order 9 Rule 13 of the CPC to a bona fide litigant, but such leniency cannot be shown to a person

who comes up with false averment before the court.

It is pertinent to mention that the learned trial judge rejected the application under Section 5 of the Limitation Act filed by the petitioner on the

ground that the petitioner failed to prove that she was prevented from sufficient cause to file an application under Order 9 rule 13 of the CPC. On

rejection of the said application under Section 5 of the Limitation Act, eventually the application under Order 9 Rule 13 of the CPC was also rejected.

The law of Limitation is enacted on public policy. The Limitation Act, 1993 has not been enacted with the object of destroying the rights of the

parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of

limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time the courts are permitted

to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within prescribed period of limitation.

In the instant case the petitioner filed the application under Order 9 Rule 13 of the CPC after expiry of 18 days from the prescribed period of

limitation. The petitioner stated that primarily due to her illness she was prevented by sufficient cause from taking step for setting aside exparte decree

passed in Ejectment Suit No.99 of 2005 within time. The expression ‘sufficient cause’ used in Section 5 of the Limitation Act and other Statutes

including Order 9 Rule 13 of the CPC is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice.

No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay, but over the years the Supreme Court has

advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of the

delay. In Maniben Devraj Shah vs. Municipal Corporation Of Brihan, Mumbai reported in (2012) 5 SCC 15, 7the Supreme Court observed in the

following words:-

“What colour the expression ‘sufficient cause’ would get in the factual matrix of a given case would largely depend on bona fide nature of

the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona

fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent

in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.â€​

It is axiomatic that 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 used only if 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 time may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of a very long range can be condoned

as the explanation thereof is sufficient and satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of

discretion and normally the superior court should not disturb such finding. But it is a different matter when the first court refuses to condoned the

delay. In such a case, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come

to its own finding even untrammeled by the conclusion of the lower court.

In the instant the trial court refused to allow the petitioner to examine the doctor who medically treated the petitioner at the relevant point of time.

The learned trial judge refused to grant reasonable time for appearance of the doctor to depose on the ground that ‘the doctor is not doing any

favour to either side by giving evidence and the prayer made by him is too much of an expectation.’

The learned trial judge forgot that a doctor performs very responsible duty in the society, i.e., to treat the patients. The duty of a doctor is always

of emergent nature. Medical treatment is immediate, time bound and specific. When the doctor who was called for to depose on behalf of the

petitioner informed the court that he received the summons only on 18th January, 2016 and it was not possible for him to attend the court to depose on

the very next day as he was preoccupied due to his medical commitment and hospital duty, such ground cannot be thrown away as wholly untenable

or arbitrary or perverse.

It is important to note that the doctor never disobeyed the court. On the other hand, he expressed his genuine inability to appear to depose on the

date fixed and prayed for further time. The learned trial court by refusing the prayer of the doctor to give evidence and consequently rejecting an

application under Section 5 of the Limitation Act, did not allow the petitioner to establish her case regarding her illness at the relevant point of time and

thereby failed to adjudicate and consider as to whether the petitioner was prevented from sufficient cause in filing an application under Order 9 Rule

13 of the CPC within the period of Limitation and whether also her application under Section 5 of the Limitation Act deserved favourable

consideration or not.

Mr. Chatterjee has repeatedly urged that the petitioner falsely stated that her son bears antagonistic attitude towards her and did not help her in

taking step in the suit. Mr. Chatterjee, however, did not place the evidence of the son of the petitioner. It is found from his evidence that he lives

separately from her parents and the relation between the wife and mother is not cordial. It is not an uncommon situation of a modern day family that

due to various reasons relation between the mother-in-law and the daughter-in-law does not remain healthy and cordial and due to such the

son/husband becomes the worst sufferer. The learned courts below did not avail themselves of the opportunity to consider of such issues to adjudicate

the application under Order 9 Rule 13 of the CPC on merit.

As a result, the instant revision is allowed on contest, without cost.

In view of the above discussion and for reasons stated above, I am not in a position to concur with the findings of the learned Additional District

Judge, Fast Tract-II, Sealdah in the impugned order passed in Misc. Appeal No.6 of 2018 dated 25th July, 2018.

The learned trial judge is directed to give opportunity to the doctor to adduce evidence on behalf of the petitioner. In doing so, he is directed to fix

the date of hearing of the application under Section 5 of the Limitation Act after a gap of at least fortnight from the date of communication of this

order to afford the doctor reasonable time to make alternative arrangement of medical treatment of his patients on the date of his deposition.

The learned trial judge is further directed to dispose of the application under Section 5 of the Limitation Act as well as under Order 9 Rule 13 of

the CPC on the basis of entire evidence on record without resorting to pedantic and hypertechnical view, causing enormous loss and irreparable injury

to the party against whom the lis terminates exparte either by default or exparte.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.