( 1 ) THE Court : The respondent is the owner of the suit premises No. 60b, Raja Dinendra Street, Calcutta 700 006. He filed Title Suit No. 19 of 1994 in the court of 2nd Munsif, Sealdah for eviction of the appellant and for certain other reliefs under the West Bengal Premises Tenancy Act, 1956 (referred to as the Act ). The defendant appellant engaged an advocate to look after her interests in the suit. ( 2 ) AN application under section 17 (2a) of the Act was filed on behalf of the appellant and pursuant to the order of the court passed on that application she has been depositing rents in respect of the said premises in the court. ( 3 ) ON 18th November, 1997, the Plaintiff respondent filed an application under clause 13 of the Letters Patent read with section 24 of the Code of Civil Procedure for transferring the said suit from the court of the 2nd Munsif at Sealdah to this court. ( 4 ) THE appellant defendant having been served with a copy of the application engaged an advocate, viz Sri Bratindra Narayan Roy to represent her before the court. The appellant filed an affidavit in opposition to the application for transfer. However, on 16th January, 1998 the matter was heard exparte and an order allowing the application under clause 13 of the Letters Patent read with section 24 of the Code was passed. ( 5 ) ACCORDING to the appellant her advocate Sri B. N. Roy could not appear in the court on that date at the time of hearing of the said application due to his illness. On coming to know about the said order, the defendant appellant instructed her advocate Sri Roy to take steps for recalling the said exparte order. Accordingly an application was moved on 18th February, 1998 before the learned single Judge for recalling the exparte order. Directions were given for filing affidavits and the learned Judge also said that the appellant could enter appearance in the suit without prejudice. ( 6 ) IN the meanwhile the lower court records relating to Suit No. 19 of 1994 of the 2nd Court of Munsif, Sealdah had been received by this Hon'ble Court and was numbered as Extra Ordinary Suit No, 1 of 1998. ( 6 ) IN the meanwhile the lower court records relating to Suit No. 19 of 1994 of the 2nd Court of Munsif, Sealdah had been received by this Hon'ble Court and was numbered as Extra Ordinary Suit No, 1 of 1998. A letter was written on 12th February, 1998 by the respondent's advocate to the appellant asking her to enter appearance within 10 days. ( 7 ) THE suit appeared in the cause list of the court on 24th March, 1998 as "undefended Suit". No name of the advocate on record for the defendant was published in the list. The suit was decreed exparte on 24th March, 1998. ( 8 ) IN August, 1998 the respondent put the decree into execution. According to the respondent notice of the execution application was served on the appellant. The copy of the application is claimed to have been served on one Uma Hazra on or about 12th August, 1998. According to the appellant the said Uma Hazra is her maid servant. Apart from submitting that her maid servant had no authority to accept service on her behalf, the appellant has submitted that Uma Hazra denied having received any such notice or copy of the application. ( 9 ) BY an order dated 13th August, 1998 a Receiver was appointed in execution of the exparte decree to dispossess the appellant and give vacant possession of the demised premises. The appellant says that she was never informed of any order dated 13th August, 1998 or any execution application having been filed by the plaintiff respondent and she was totally ignorant of the fact that the said suit has been decreed exparte. ( 10 ) ON 19th August, 1998 the Receiver came take possession of the suit premises and requested the appellant to deliver vacant possession of the suit premises. The appellant has said that being an aged widow living alone she became 'panicky and perplexed' on receiving the information for the first time that the suit had been decreed exparte without her knowledge. As such she put her signature on a paper which contained an undertaking that she would vacate the premises by the 22nd August, 1998 in favour of the plaintiff. ( 11 ) ACCORDING to the appellant she was all along under the impression that her interests were being looked after by her advocate Sri B. N. Roy whom she had engaged. ( 11 ) ACCORDING to the appellant she was all along under the impression that her interests were being looked after by her advocate Sri B. N. Roy whom she had engaged. Unfortunately, the advocate on record did not take any step in connection with the suit not take any steps to keep her informed. The appellant then engaged another advocate named Asit Kumar Hazra who after making inquiry into the matter informed her of the facts stated above. ( 12 ) ON 27th August, 1998 the appellant filed an application for recalling the order dated 13th August, 1998 by which the Receiver was appointed directions for filing the affidavits were given and the learned counsel for the appellant decree holder gave an undertaking on behalf of his client that he would not take any steps in execution of the proceeding in the meantime. The application is still pending. ( 13 ) ON 27th September, 1998, the appellant moved a petition for setting aside the exparte decree passed on 24th March, 1998. After the affidavits were filed on 17th November, 1998 the application was dismissed by the learned single Judge. The present appeal has been filed challenging the order dated 17th November, 1998. ( 14 ) THE main point for consideration in this appeal is whether the defendant appellant was prevented by sufficient cause from appearing before the court on the date of hearing i. e. 24th March, 1998 when the suit was decreed exparte. ( 15 ) THE learned single Judge disbelieved the appellant's story and rejected her explanation that she was not aware of the suit having been fixed for hearing and listed in the cause list on 24th March, 1998. The learned Judge also based his order on the appellants undertaking to the Receiver that she would leave the premises by the 22nd August, 1998. ( 16 ) WE are unable to uphold the reasoning of the learned single Judge. The appellant's undertaking to the Receiver can neither preclude her from challenging the decree nor can it render her explanation for not being present when the suit was decreed, improbable or untrustworthy. ( 16 ) WE are unable to uphold the reasoning of the learned single Judge. The appellant's undertaking to the Receiver can neither preclude her from challenging the decree nor can it render her explanation for not being present when the suit was decreed, improbable or untrustworthy. The learned single Judge appears to have ignored the principle enunciated by the Supreme Court in N. Balakrishnan v. M. Krishnamurthy 1998 (6) SCC 507 to the effect that the equitable principle of election and estoppel that one cannot both approbate and reprobate cannot operate where constitutional or statutory rights or liabilities are involved. It was observed by Their Lordships that a party to a lis can be asked to give an undertaking to the court if he requires stay of operation of the judgment and it is done on the supposition that the order would remain unchanged. But by directing the party to give such an undertaking no court and a fortiori no Receiver or party to the proceeding can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by a superior court or by the same court on a review, the undertaking given by the party will automatically cease to operate. ( 17 ) ACCORDING to the respondent the appellant should have known that the suit would be listed as an undefended suit as she did not enter appearance in the transferred suit and under the provisions of the Original Side Rules of this court if a defendant does not enter appearance, the plaintiff is entitled to have the suit listed and heard as an undefended suit. The respondent was at pains to show that the rules for entering appearance as provided by the Original Side Rules of this court applied also to transferred suits although the Rules were not applicable to the court from which the suit was transferred. ( 18 ) THE argument of the respondent as well as the approach of the learned Judge are erroneous. The Rules provide that a defendant is to enter appearance neither the time fixed by the writ of summons. The period is to be calculated from the date of service of the writ. The writ is served by the Officers of the Sheriff. The Rules provide that a defendant is to enter appearance neither the time fixed by the writ of summons. The period is to be calculated from the date of service of the writ. The writ is served by the Officers of the Sheriff. It may be argued that in such a case, a defendant who does not appear within the time fixed can be presumed to know that the suit would be listed thereafter as an undefended Suit. ( 19 ) HOWEVER there is no provision in the Original Side Rules prescribing any period within which a party should enter his or her appearance after a suit is transferred to this court. No date had also been fixed by the court by which the appellant was to enter appearance. Since there is no provision for the court to issue a fresh writ of summons in respect of a transferred suit as there is no procedure prescribed for this court to formally issue notice of receipt of the records of a transferred suit to the defendant, it was incumbent on the respondent plaintiff to have obtained an appropriate direction from the court upon notice to te appellant/defendant. It was not open to the advocate of the plaintiff to fix the time for entering appearance and then obtain a certificate from the Registrar of non appearance and proceed with the suit as an undefended one. ( 20 ) THEREFORE the presumption of knowledge would not apply. The suit was never earlier listed before the High Court. According to the Original Side Rules the suit should have been listed in the warning list before it appeared as an undefended suit. It did not. In the circumstances, it cannot be said that the appellant could have known that the suit would appear in the list on 24th March 1998. ( 21 ) NO name of any advocate for the appellant at all appeared in the list when the suit was listed as an undefended suit presumably because no appearance had been entered by that date. Whatever the reason, in view of the absence of the advocate's name in the cause list it is extremely unlikely that either the advocate for the appellant and a fortiori the appellant could have known that the suit was at all listed for disposal as an undefended suit [see : Ranipet Chemicals and Engineering Co. Whatever the reason, in view of the absence of the advocate's name in the cause list it is extremely unlikely that either the advocate for the appellant and a fortiori the appellant could have known that the suit was at all listed for disposal as an undefended suit [see : Ranipet Chemicals and Engineering Co. Pvt. Ltd. v. Swastik Stainless Steel Stores: AIR 1986 Cal 76 (DB)]. ( 22 ) THE next contention on behalf of the respondent is that the application for setting aside the ex-parte decree was hopelessly barred by limitation and that there was no prayer for condonation of delay. According to the learned advocate for the respondent, the decree was passed on 24th March, 1998 and the application under Order 9 Rule 13 of the Code was preferred on 5th September, 1998 while the fact of transfer of the suit from the Court of Munsif, Sealdah to the Original Side of this court was in the knowledge of the defendant, inasmuch as she had admittedly received the letter dated 12th February, 1998 sent by the learned advocate of the respondent. ( 23 ) IT has been urged on behalf of the respondent that under Article 123 of the Limitation Act, limitation starts from the date of the decree where the defendant is served with notice or summons, but where no such summons have been served, limitation will be computed from the date of the defendant's knowledge and since in the present case the defendant admittedly had been served with the writ of summons when the suit was filed in Sealdah and subsequently when the suit was transferred to this court, with the advocate's notice, The limitation would commence from the date on which the exparte decree was passed i. e. on 24th March, 1998. ( 24 ) IT is debatable whether the rigour of Article 123 can be applied to a situation when a suit is transferred and the suit is, as it were, entertained by this court for the first time. As already seen, no formal notice is issued by the court when the records are received. Furthermore, the application for recalling the order for transfer was pending and in fact appeared in the list on the date the suit was decreed exparte. The order of transfer was therefore a precarious one. As already seen, no formal notice is issued by the court when the records are received. Furthermore, the application for recalling the order for transfer was pending and in fact appeared in the list on the date the suit was decreed exparte. The order of transfer was therefore a precarious one. If the application for recall were allowed there would be no question of this court entertaining the suit at all. Since the application is still pending it would not be unreasonable for a defendant not to anticipate that the suit would be decreed by the court in the meanwhile. ( 25 ) IT is the applicant's case that she has been regularly depositing rent pursuant to the order under section 17 (2) of the Act in the Sealdah court even after the date of the decree. This fact also indicate her ignorance of the decree. ( 26 ) THE Supreme Court in Balakrishnan v. M. Krishnamurthy reported in AIR 1998 SC 3 222 in an almost identical situation held that rules of limitation are not meant to destroy the rights of the parties but they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It was further held :"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. This court has held that the words 'sufficient cause' under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumar, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749 ". ( 27 ) IT has been further observed by Their Lordships that in every case of delay there can be some lapse on the part of the litigant concerned and that alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides 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 a 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. If the explanation does not smack of malafides 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 a 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. ( 28 ) IN the instant case it does not appear that the appellant was dilatory in prosecuting the proceedings at least before this court. ( 29 ) IT is the case of the appellant that she is an aged widow and lives alone. She had entrusted the matter and wholly relied on her advocate Mr. B. B. Roy with regard to the steps to be taken on her behalf. The decisions cited by the respondent to contend that the courts do not entertain an advocates laches as sufficient cause have no bearing on this case. In Shalimar Paints v. Sm. Ashoka Dev (99 CWN 789) the appellant was a company and as such different norms would be applicable. Again in P. K. Ramchandra v. State of Kerala [19978 JT 189] the applicant was the State Government and admittedly had knowledge of the order but did not file the appeal within the prescribed period because it was so advised. The only explanation given for the delay was that there was a change of mind subsequently without any reason why such sudden change took place. In this case the knowledge of the decree is in dispute. ( 30 ) ON the other hand the observations of the Supreme Court in Rafiq v. Munshilal, AIR 1981 SC 1400 are more opposite. "under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only required but hardly useful. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only required but hardly useful. Therefore, the party having done everthing in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the later appears in the matter when it is listed. " ( 31 ) IN N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3 222 the Supreme Court condoned the delay of as many as 883 days on the ground that the same was caused due to failure of the advocate to inform the party as well as his failure to take necessary action, when so required. In this connection, the apex court observed that it is axiomatic that condonation of delay is a matter of discretion of the court and section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. The length of delay is immaterial. Acceptability of the explanation is the only criterion and sometimes delay of the shortest range may be untenable due to want of an acceptable explanation whereas in certain other cases delay of long periods can be condoned if the explanation is satisfactory. In our present case, the delay which occurred on the part of the appellant in filing the application under Order 9 Rule 13 of the Code would be, if computed from the date of passing of the exparte decree. i. e. 24th March, 1998, about 165 days. We hold that the explanation given by the appellant regarding this delay has been found by us to be satisfactory. ( 32 ) THE submission that the application of the appellant was liable to be dismissed because there is no prayer for condonation of dellay is unacceptable in view of the several decisions holding to the contrary [see P. Kasilingam v. PSG and Sons Charities 1990 (Supp.)SCC 89 (II), Bhanumati Sinha v. Jugal Kishor and Co. ( 32 ) THE submission that the application of the appellant was liable to be dismissed because there is no prayer for condonation of dellay is unacceptable in view of the several decisions holding to the contrary [see P. Kasilingam v. PSG and Sons Charities 1990 (Supp.)SCC 89 (II), Bhanumati Sinha v. Jugal Kishor and Co. 1989 (1) CHN 33 , Pari Bai v. Bhagat Ram AIR 1977 All 551, 553, and Nand Singh v. Estate Officer : AIR 1993 Delhi 38. ] In the unreported decision of this court on 25. 1. 99 in Gurdeep Singh v. Maju Roy Chowdhury (APOT No. 475 of 1998) relied on by the respondent this issue was not raised at all. ( 33 ) AS the cause shown by the appellant defendant for her non appearance before the trial court on the date of hearing is considered by us as sufficient we set aside the order under appeal and direct that the application under Order 9 Rule 13 filed by the appellant be allowed. The decree dated 24th March, 1998 is accordingly set aside and the appeal is allowed but without costs. Appeal allowed.