JUDGMENT 1. THIS is an application for condonation of delay under Section 5 of the Limitation Act. 2. AGAINST the judgment and decree dated 30th September, 1991, passed in Title Suit No. 137 of 1986 by 2nd Assistant District judge. Alipore, the petitioner preferred this First Appeal being F. A. T No. 2016/ 92. The 1st date of filing the appeal, to be within the period of limitation, would have been 16th March, 1992, but the petitioner filed the First appeal on 25th June, 1993 before this High Court and in that process there was a delay of 101 days as per the office report, but according to the petitioner, the delay was of 104 days. The petitioner sought to explain that delay of 101 days and prayed for condonation of the same. 3. AFTER filing the First Appeal as aforesaid on 25th June. 1992 the petitioner made and application for condonation of the delay under Section 5 of the limitation Act. on 1st July, 1992. 4. IN the meantime, the opposite party levied execution and Title execution Case No. 4 of 1992 was started in the Court of 2nd Additional district Judge, Alipore. This Court by its order dated 17-2-93 stayed the said execution proceeding for 3 weeks on the application under Section 5 of the Limitation act with the liberty to the petitioner to apply for extention of the same with notice to the respondent, and from time to time the said interim order of stay was extended ' 5. SHORN of details, the background off the case is, that the present petitioner entered into an agreement for sale of the suit property at 16, mayfair Road. Calcutta, on 17-10-85 by a letter, for a consideration of Rs. 40 lacs and out of that amount the present respondent/opposite-party advanced a sum of Rs. 3 lacs to the petitioner, which she accepted. 6. THE respondent / opposite-party pressed for execution of the sale deed and also for supplying the title deed of the said property and the appellant / petitioner by a letter dated 21-1-86 informed the respondent/opposite-party for the first time that the title deed of the property was lying with the united Bank of India, Clive Ghat Street Branch as the property was already mortgaged with the said bank for a sum of Rs. 2 lacs. 2 lacs. Thereafter, by another letter dated 3-2-86 the appellant petitioner informed the respondent/opposite-party that the total dues to the bank was Rs. 10,50.000. 7. THE petitioner by a letter dated 20-9-816 terminated the agreement for sale. 8. THE respondent opposite party, thereafter, instituted a Title suit in the court of 2nd Assistant District Judge, Alipore being title suit No. 137 of 1986, for specifie performance of contract and alternatively for refund of earnest money with interest and damages value at 40 lacs. The suit was contested by the appellant/petitioner and ultimately the suit was decreed on 30-9-91 In favour of the present respondent/opposite party. 9. AGAINST the said judgment and decree dated 30-9-91 of the 2nd assistant District Judge. Alipore, in Title Suit No. 136 of 1936, the appellant/petitioner preferred the present First Appeal being F. A. T No. 2016 of 1992 in this Court. 10. IN the trial court, as it appears from the certified copy of the judgment, one Sri Gora Chand was the advocate on record for the petitioner. That apart, one Sri Krishnadhan Addhya was the constituted attorney of the petitioner in that suit. It also appears from the record that one Sri Amaresh Ch. Mitra, an advocate and Attorney-at-law of Calcutta High Court, pursued the case of the petitioner all along in the Trial Court and the senior counsels of calcutta High Court Mr. Aninda Mitra and Mr. Hironmoy Dutta appeared for the petitioner in the suit. 11. THIS is a well settled principle, as enunciated by the Supreme Court in the case of Randal vs. Rewa Coal Fields Ltd. reported in AIR 1962 S. C. 361, that want of diligence till the last date of the limitation would not disqualify a person for applying for the excuse of delay. So the delay requires to be explained is from the date the time started running out till the date of filing the appeal legally. 12. IN the instant case the time started running out on and from 17-3-92 and ended on 25-6-92, on which date the appeal was presented. So the petitioner is liable to explain the delay for the said period by showing sufficient cause for the excuse of the delay. 13. 12. IN the instant case the time started running out on and from 17-3-92 and ended on 25-6-92, on which date the appeal was presented. So the petitioner is liable to explain the delay for the said period by showing sufficient cause for the excuse of the delay. 13. IN her condonation petition the petitioner has stated that she is an old lady of 84 years age suffering from various types of ailments and was unable to look after her own matters. She did not know any practising advocate of the Calcutta High Court. Her younger son settled in Germany had come to Calcutta towards the end of the year 1991 and had fallen ill. He was hospitalised and discharged from the hospital on 1st april, 1992. 14. HER elder son is resident of Madras and he came to Calcutta on 6th june, 1992 for a short while and on the day following she showed the judgment and decree to him and the said elder son on 9th June. 1992 contacted an advocate practising in the Calcutta High Court and made over all necessary papers including the judgment and decree to him and on 13th June. 1992 he approved the view of the learned advocate of the alipore Court that an appeal is to be preferred. The petitioner then instructed the said learned Advocate to take steps for preferring the appeal. 15. THE said learned Advocate informed the petitioner that he would file, the memorandum of appeal and also informed the petitioner that she would have to file a petition for condonation of delay as soon as her health permits. On 25th June. 1992 the said learned Advocate brought all papers and petition for condonation of delay. The petitioner was completely bed-ridden then and was not in position to move out and to go to the Court for affirmation of the petition. She assured the said advocate that she would come to the court and affirm the petition for condonation of delay as soon as she would recover slightly and could be permitted by her doctor to move out. 16. SO the explanation. She assured the said advocate that she would come to the court and affirm the petition for condonation of delay as soon as she would recover slightly and could be permitted by her doctor to move out. 16. SO the explanation. as offered by the petitioner, are five fold in nature:- a) she is an old lady of 84 years of age and suffering from various types of ailments b) She cannot look after her own matters without any from others c) Advocate practising in the High Court was known to her d)her younger son, a resident of Germany, came to Calcutta towards the end of the year 1991 and had fallen ill and was hospitalised and discharged from the hospital on 1st April, 1992. He is still under medical care and attention which caused mental worries to the petitioner and she could not give her attention to other matters that e) her elder son, a resident of madras. came to Calcutta in connection with his business on 6th June, 1992, Petitioner showed him all the papers in connection with the case and also the judgment and decree of the case on 7th June, 1992 and he contacted an advocate practising in the High Court through his business contact on 9th June. 1992 and gave him all the papers of the case who opined on 13th June, 1992 that an appeal has to be filed before the High court against the said judgment and decree and advised filing petition for condonation of delay. He saw the petitioner on 25th June, 1992 with memorandum of appeal and condonation petition and at that time the petitioner was bed-ridden and was noli in a position to move out. No document is forthcoming to show that the younger son of the petitioners was ill or he was hospitalised or he was discharged from the hospital on 1st April 1992 or the said son was from his illness till the date of filing the petition for condonation of delay. 17. THE petitioner has not produced any document to show that her elder son came to Calcutta from Madras on 6th June, 1992, though he came to calcutta in connection with his business. 18. 17. THE petitioner has not produced any document to show that her elder son came to Calcutta from Madras on 6th June, 1992, though he came to calcutta in connection with his business. 18. IN paragraph 4 of the petition for condonation of delay it has been stated that on 31st January, 1982 certified copy of the judgment and decree was given to the petitioner by learned Advocate and the petitioner requested her learned Advocate to file an appeal against the said judgment and decree, and the learned Advocate expressed the same opinion, and informed the petitioner that an appeal need to be preferred before the hon'ble High Court. It has not been disclosed by the petitioner in her petition for condonation of delay who was that learned Advocate. The petitioner also did not disclose the name of any of the advocates in her petition for condonation of delay. It appears from the certified copy of the judgment that one Sri Gora Chand was her advocate on record. It was only when the respondent/opposite-party disclosed in the affidavit-in-opposition affirmed by Kirity Roy on 9-3-93 in paragraph 8 that one Sri Amaresh Ch. Mitra. an advocate-cum-soliciter was her advocate in the trial court, the petitioner admitted in her affidavit -in reply that the said Sri Mitra was her advocate in the trial court. The petitioner suppressed that fact and trial to draw a red herring by stating that the learned Advocate opined that an appeal was to be preferred in the High Court and advised the petitioner to engage an advocate practising in the High Court for that purpose tenancy giving a clear impression that the learned Advocate is a practitioner of Alipore court and no practising advocate of High Court was known to her. 19. MR. Amaresh Ch. Mitra is an attorney of the Calcutta High Court and also an advocate but the petitioner could not take his assistance in the matter of filing the appeal in the High Court. This is incredible to be believed. This shows that the petitioner did not make a true account of fact and was negligent in presenting the matter in right earnest. She did not act bonafide in preferring the appeal in time. 20. This is incredible to be believed. This shows that the petitioner did not make a true account of fact and was negligent in presenting the matter in right earnest. She did not act bonafide in preferring the appeal in time. 20. NOT only that, a letter of the petitioner dated 29-4-92 has been disclosed by the respondent/opposite-party in its affidavit dated 9-3-93 ffirmed by one Kirty Roy and on in depth study of that letter would show that the drafting of the letter was evidently by a lawyer. But it has been contended by Mr. Roy Chowdhury, the learned advocate for the petitioner, that there are difference between an advocate and an advocate in the original side is not quite conversant with the practice and procedure of the appellate side. So the petitioner could not get any assistance from the said advocate-cum-attomey-at-law Mr. Amaresh ch. Mitra in the matter of preferring the First Appeal. 21. WE are afraid, we cannot accept such contention of Mr. Roy Chowdhury. The court cannot draw a distinction and cannot measure the keen of knowledge of an advocate about his forensic acumen. There is no standard before the Court to make such distinction between an advocate and an advocate and if the court is permitted to do so that will cause a judicial furore. 22. IT appeared from the record that the petitioner is the chairman of m/s. P. C. Chandra and Company Pvt. Ltd. The allegation that the appellant/petitioner due to illness of her younger son could not give attention to any other matter and was very much/mentally worried, is not supported by any material evidence or document. The matter is within the personal knowledge of the petitioner and petitioner in order to prove the same could file relevant documents in Court or disclose the same by an affidavit but instead she chose to remain silent on the point virtually there was no explanation from 17th March 1992 to 1st April. 1992. Then again the petitioner alleged that her elder son came to Calcutta in connection with his business for a short period on 6th June. 1992, but no document is forth coming In support of the said statement and that remains without any foundation. So, virtually there is no explanation from 17th March, 1992, onwards. These are mere allegation without any evidence. 1992, but no document is forth coming In support of the said statement and that remains without any foundation. So, virtually there is no explanation from 17th March, 1992, onwards. These are mere allegation without any evidence. The plaintiff alleged that she showed the judgment and decree to his elder son on 17th June, 1992 and the said elder son contacted a practising advocate of Calcutta High Court on 9th June, 1992. Curiously enough, the name of the advocate has not been disclosed by the petitioner in his petition for condonation in her affidavits. Only on 13th June the learned advocate confirmed the view of the advocate practising in the Alipore Court that an appeal need to be preferred before the Calcutta High Court. 23. IT is very hard to believe that statement because the very moment the judgment and decree was shown to the petitioner by her learned advocate practising in Alipore Court she requested the said advocate, though name not disclosed, to file an appeal. If the petitioner could understand instantly that an appeal is to be filed why she should wait for an advocate practising to Calcutta High Court to give a confirmatory opinion that an appeal to be preferred before the High Court? 24. MR. S. P. Roy Chowdhury, relied on a Division Bench decision of this court in the case of Ray Saheb, Chandra Mul, Indra Kumar vs. J. M. Geenka reported in 67 CWN 482 to show that "a litigent misled by erroneous legal advice by an advocate whom he entrusts has litigation with is entitled to plead sufficient cause within the meaning of Section 5 of the Limitation act. " He pointed out from that decision that "the time having been run out, a very valuable right" has accrued to the petitioner's adversaried. That is true. But equally true it is that this is not an absolute right. This is a right that must yield in favour of the petitioner having shown sufficient cause for the delay which the petitioner has shown. The court always loans against a flude. " He also pointed out the observation made decision it is a matter of discretion which is judicial and not arbitrary. the words. 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant. 25. MR. The court always loans against a flude. " He also pointed out the observation made decision it is a matter of discretion which is judicial and not arbitrary. the words. 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant. 25. MR. Roy Chowdhury also relied on another Dfvision Bench decision in the case of Somnath Banerjee vs. Vivek Salvi reported in 92 CWN 558. In that case appeals were preferred before a wrong forum due to the wrong advise of the learned lawyers for the appellant and the court held that to be a sufficient cause for condonation of delay. 26. IN the case under consideration there is neither any negligence nor any erroneous legal advise by any learned Advocate. So, those decision have got no bearing in the instant case. Mr. Roy Chowdhury also relied on a Supreme Court decision Collector, Land Acquisition Anantnag vs. Mst Katiyi reported in AIR 1987 SC 1353 where speaking for the Bench Thakkar, J at page 1354 has observed that:- (I) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (II) Refusing to condone delay can result in a meritorian matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (III) Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. (IV) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot: claim to have vested right in injustice being done because of a non-deliberate delay. (V) There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of malafides. A litigent does not stand to benefit by resorting to delay. In fact he run serious risk. (VI) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 27. A litigent does not stand to benefit by resorting to delay. In fact he run serious risk. (VI) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 27. IN a subsquent decision in the case of G. Ramegowda, Major vs. The special Land Acquisition Officer, Bangalore, reported in AIR 1988 S. C. 897 justice M. N. Venkatachaliah speaking for (the Bench while referring to the case of Mst Katyi (Supra) has observed in paragraph 7 at page 900 that "There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliverate or gross inaction or lack of bonafides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression sufficient cause" in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays is preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of the delay. In Katiji's case (Supra) this court said : "when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right injustice being done because of a non-deliberate delay". It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so". 28. A single Bench of the Calcutta High Court in the case Beharilal Shaw vs. Surindra Singh reported in 92 CWN 595 has held that a party asking for excercise of discretion vested in the court of law under Section 5 of the limitation Act must prove the case for exercise of such a discretion. A party asking for such exercise of discretion in his favour cannot keep facts up in sleeves but must make a full and complete discloser of related facts. A party asking for such exercise of discretion in his favour cannot keep facts up in sleeves but must make a full and complete discloser of related facts. This view of the Single Bench has found support by a Division Bench of this Court in the case of Income Tax Officer, 'f" word. District, W (3)Calcutta vs. Indian Overseas Corporation reported in Calcutta Law Times 1993 (I) HC 132. 29. IN that decision it has been held "it is a matter of discretion with the court whether it will enlarge the period of limitation or not. Of course, such discretion is a judicial one and not (arbitrary. The court must exercise its discretion with reference to the facts and circumstances of each case. In exercise of such discretion the court must see whether or not the appellant has acted with reasonable diligence in prosecuting the appeal. While granting such indulgence in favour of the appellant the court must be satisfied that there was diligence on part of th appellant and that he was not guilty of any negligence whatsever". 30. IN the instant case, as has already been pointed out there was no explanation about the delay on and from 17th March, 1992 till the date of the filing of the appeal. Mr. Roy Chowdhury contended, by referring to the case of collector. Land Acquisition, Anantnag (Supra), that each day delay need not be explained and a plausible explanation, if offered, will be deemed to be an explanation for the entire period. 31. THE Supreme Court in the case of Union of India vs. Tata Yodogawa ltd. reported in 1988 (3) Exercise Law Times 739 (SO has held in the background of the fact where there was a delay of 51 days in the matter of preferring special leave petition before the Supreme Court and in the application for condonation of delay the petitioners stated that the cause for such delay was due to "interdepartmental correspondance and processing of matter to enable the department: of file the instant petition, "and contention was raised that such delay was always beyond the control especially in government matters as the file had to be routed through several sections of the department observed that "we are aware of the fact that a Government being impersonal takes longer time than the private bodies or the individuals. Even giving that latitude, there must toe some way or attempt to explain the cause of such delay. As stated from the facts narrated herein before there is no sufficient cause to explain the delay." 32. IN the instant case, the petitioner has not disclosed be production of necessary and relevant documents the date of admission of the second son of the petitioner in the hospital and in which hospital he was admitted and what was the nature of disease or he was discharged from the Hospital on 1st. April. 1992. Secondly the petitioner did not disclose by production of relevant document, that his elder son came to Calcutta on 6th June, 1992 in connection with business. 33. THE petitioner also did not disclose that he had always the service of a solicitor-cum-advocate of the High Court, namely Mr. Amaresh Chandra mitra. It is the petitioner's consistent stand that she was an aged lady of 84. unable to look after her own matters and did not know any practising advocate of the Calcutta High Court for which the appeal could not be filed in time. 34. THE name of the Advocate with) whom the elder son allegedly entrusted the papers along with the judgment and decree on 9th June. 1992 has not been disclosed nor the petitioner did disclose in her petition for condonation of delay that all through the cutire proceeding in the suit in the trial court she had the service of an advocate/solicitor of the High court. So the petitioner kept the material facts up in her sleeves. 35. IT is not also believable that she being Chairman of a company did not know any practising advocate of the Calcutta High Court. 36. MR. Kapoor, the learned Advocate for the respondent/opposite-party pointed out from the letter of the petitioner dated 29-4-92 as annexed to the affidavit of the opposite-party affirmed by Kirty Roy on 9-3-93, that the latter was drafted by the shilfull heads of a lawyer. This goes to show that the advocate was at hand of the petitioner from whom the petitioner could take assistance of. In such circumstances, we are of the firm view that the condonation petition suffers from suppress veri and suggestion falsi and, accordingly, the petitioner is not entitled to invoke the exercise of the courts discretion for the excuse of the delay. In such circumstances, we are of the firm view that the condonation petition suffers from suppress veri and suggestion falsi and, accordingly, the petitioner is not entitled to invoke the exercise of the courts discretion for the excuse of the delay. The petitioner was not at all diligent in prosecution the matter in right earned and there: was lack of bons fides and in action on her part. The delay has also not been sufficiently explained to the court's, satisfaction. 37. WE, accordingly, dismiss the petition for condonation of delay without any order as to costs. In view of the order passed hereinbefore this appeal stands infructions and is dismissed There will be no order as to costs. Preparation of the formal decree is dispesed with.