Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 214 (GAU)

Tulshi Nandi v. Noor Sahida Begum

2001-08-06

AFTAB H.SAIKIA

body2001
Heard Mr. AR Banerjee, learned senior counsel assisted by Ms B. Choudhury, learned counsel for the petitioner. Also heard Mr. BK Goswami, learned senior d counsel assisted by Mrs T. Goswami appearing on behalf of the opposite party. 2. This is an application under section 5 of the Limitation Act for condonation of delay of 575 days in preferring the civil revision being CRP No. 88 of 2001. Explaining such delay of 575 days the petitioner has narrated the sufficient causes in this application particularly in paragraphs 3, 4, 5, 6, 7, 8 and 9 which run as follows: "3. That the humble petitioner did not approach this Hon'ble Court against the said appellate judgment and decree and preferred a review application before the learned Civil Judge, Senior Division seeking review of the judgment on several grounds. The said review application which was accepted and registered as Title Appeal No.27 of 1995 (Review) was taken up for hearing by the learned Civil Judge, Senior Division on 23.11.2000 and was finally dismissed on 8.12.2000 by confirming the judgment and decree passed earlier in Title Appeal No.27 of 1995 on 15.5.99. 4. That the petitioner has preferred an application for revision against the said order in the review petition before this Hon'ble Court and the same is pending admission. 5. That the humble petitioner respectfully states that in his application for revision which is being preferred before this Hon'ble Court against the judgment and decree dated 15.5.99 of the learned Civil Judge, Senior Division there is a delay of 575 days as the petitioner could not approach this Hon'ble Court because of the review petition, having been preferred by him as herein before stated. 6. That because of seeking remedy in the appellate forum itself by way of review the humble petitioner could not approach this Hon'ble Court during the statutory period for revision of the judgment and decree and as such the same got delayed. 7. That there was no intentional laches nor any negligence on the part of the humble petitioner and he was under bonafide belief that his application for review of the impugned judgment and decree would be considered by the learned Judge as the petitioner urged the same on several good grounds. 7. That there was no intentional laches nor any negligence on the part of the humble petitioner and he was under bonafide belief that his application for review of the impugned judgment and decree would be considered by the learned Judge as the petitioner urged the same on several good grounds. The application for review however, failed to get considered and the petitioner, therefore, has no other alternative but to move Your Lordships for setting aside the judgment and decree passed in the title appeal by the first appellate Court. 8. That the petitioner respectfully states that the petitioner has approached this Hon'ble Court at the earliest opportunity within the statutory period from the date of passing the judgment and order on his review application. 9. That the petitioner was unable to approach this Hon'ble Court because of the pendency of his review petition and as such the delay in preferring the revision against the impugned judgment and decree was due to a technical ground." 3. From mere perusal of the aforesaid paragraphs it would show that against the impugned judgment and decree dated 15.5.99 passed by the Civil Judge (Senior Division) in Title Appeal No. 27 of 1995, the petitioner, instead of preferring the present civil revision, filed review application seeking review of the impugned judgment and decree dated 15.5.99 on 17.8.99. The said review application was dismissed by the reviewing Court on 8.12.2000. Thereafter also instead of filing this revision petition immediately after the rejection of review application, the petitioner waited and opted to prefer two separate petitions before this Court only on 23.3.2001 one, against the impugned judgment and decree dated 15.5.99, the present civil revision and the other, against the order dated 8.12.2000 dismissing the review application through Civil Revision 88 of 2001 and Civil Revision 87 of 2001 respectively. During the pendency of this civil revision for admission, the Civil Revision No. 87 of 2001 challenging the order dated 8.12.2000 dismissing the review petition was also dismissed by this Court on 12.4.2001. 4. On perusal of the records it manifestly shows that there is a total delay of 575 days in filing this revision petition from the date of passing of the impugned judgment and order i.e. 15.5.99 and it would be 105 days delay from 8.12.2000 on which date the review petition was dismissed by the reviewing Court. 5. Mr. 4. On perusal of the records it manifestly shows that there is a total delay of 575 days in filing this revision petition from the date of passing of the impugned judgment and order i.e. 15.5.99 and it would be 105 days delay from 8.12.2000 on which date the review petition was dismissed by the reviewing Court. 5. Mr. Banerjee, learned senior counsel, supporting the averments made in this petition for the condonation of delay, has argued that the delay so committed was caused only because of seeking remedy for review in the competent Court and in prosecuting such remedy the petitioner has acted bonafide and as such this delay deserves to be condoned in the interest of justice. In support of his submissions he has relied upon the following judicial pronouncements of various High Courts : (i) AIR 1925 Bombay 137 (Nariman Rustomji Mehta vs. S Hassan Ismail); (ii) AIR 1926 Calcutta 677 (Ramdhoni Muchi vs. Khakshardas Tati & another); (iii) AIR 1972 Kerala 117 (MT Cherian vs. Ponkal Victall Naik & Company). 6. In Nariman Rustomji Mehta's case (supra) the Division Bench of Bombay High Court held that in computing the period of limitation for an application for leave to appeal to-Privy Council, the time taken up for review of the judgment sought to be appealed against, should be excluded. Since the petitioner in that case was prosecuting the review application in good faith and the time occupied should be deducted in calculating the period of limitation for presenting the application for leave to appeal to His Majesty in Council, and if that time is deducted, it is clear that the application is within time. 7. This observation was made by the Court on the basis of the fact that the review application in the said case was finally decided on 11.2.24 and immediately on the next day, that is on 12.2.24 the application for condonation of delay was preferred and it is seen that on the basis of that factual position the Division Bench of Bombay High Court has allowed the condonation petition holding that the prosecution of the review application is bonafide. 8. In the case of Ramdhoni Much! 8. In the case of Ramdhoni Much! vs. Khaskshardas Tati & another (supra) it was held by the Calcutta High Court that the extension of time on account of the appellant's presenting the review application was granted taking into consideration to the fact that there is due diligence in prosecuting the application and sufficient grounds for applying for review was proved. 9. In MT Cherian's case (supra) the Kerala High Court held that if an applicant had been diligent or bonafide in filing the review application, delay caused due to such prosecution of the review application may be accepted as sufficient cause for condonation of delay. In the said case also the factual position was that the application for prosecuting the review of the judgment was disposed of on 25.3.71 and the appeal along with the condonation of delay was preferred immediately on 27.3.71 within a period of two days of such disposal of the review application as evident from para 14 of MT Cherian's case (supra). 10. Strongly relying on these decisions, Mr. Banerjee learned senior counsel has tried his best to impress this Court by submitting that in a case of condonation of delay, Court should always be liberal and should not take a pedantic approach inasmuch as substantial justice is required to be done by this Court. 11. Having given my earnest consideration to the submissions made on behalf of the petitioner arid also having regard to the ratio of aforesaid citation, I am not impressed a wee bit by these submissions and unhesitatingly opined that the ratio of all these cases are not at all applicable to this case. 12. What appears from the record available before this Court, is that against J the judgment and decree dated 15.5.99, instead of preferring the present civil revision before this Court, the petitioner approached, of his own, the reviewing Court on 17.8.99 that too after an expiry of the limitation period of preferring the revision petition. 12. What appears from the record available before this Court, is that against J the judgment and decree dated 15.5.99, instead of preferring the present civil revision before this Court, the petitioner approached, of his own, the reviewing Court on 17.8.99 that too after an expiry of the limitation period of preferring the revision petition. More interestingly, after dismissal of the review petition on 8.12.2000, the petitioner, instead of filing any revision petition immediately as in Nariman Rustomji's case (supra) and MT Cherian's case (supra) relied on by the learned senior counsel appearing on behalf of the petitioner, filed the present revision petition only on 23.3.2001 that too after a lapse of 105 days along with the other Civil Revision No. 87 of 2000 by which the dismissal of the review application has been challenged. The argument was made on behalf of the petitioner to the effect the Civil Revision No. 8 7 of 2000 was filed within the limitation period and since the petitioner has been pursuing the review petition all along bonafide, the petitioner has moved this Court through the present civil revision along with the said Civil Revision No. 87 of 2000 as a matter of right and the delay caused on such filing in prosecuting the review deserves to be condoned for ends of justice. I am disinclined to accept such argument. 13. Even assuming that the petitioner has been prosecuting this review application bonafide and accepting the period upto 8.12.2000 be excluded from the limitation, no plausible or cogent grounds could be shown by the applicant for delay in filing this application after the order dated 8.12.2000 dismissing the review petition till the date of filing of this revision on 23.3.2001. Such delay has not been properly explained as required under the law. 14. Debunking the petitioner's claim for condonation of delay on the ground of prosecution of the review application bonafide, Mr. BK Goswami, learned senior counsel for respondent has vehemently argued that the petitioner has not been able to make out a fit case for condonation of delay and the same is apparently c reflected on the face of the application of the condonation of delay itself. BK Goswami, learned senior counsel for respondent has vehemently argued that the petitioner has not been able to make out a fit case for condonation of delay and the same is apparently c reflected on the face of the application of the condonation of delay itself. The learned senior counsel has relied on the decisions of PK Ramchandran vs. State of Kerala reported in AIR 1998 SC 2278 and Union of India & others vs. Wood Crafts Products Ltd & another reported in (2001) 1 GLR 327 (2001 (1) GLJ 369). 15. In PK Ramchandran's case (supra) the Apex Court observed in para 6 as follows: "Law of limitation may harshly effect a particular party, but it has to be applied with all its rigour when the statutes so prescribe and the Courts have no power to extend the period of limitation on equitable ground." 16. The said case has been fully relied on by the Division Bench of this e Court in Woodcrafts Product's case (supra). In that case, this Court dismissing the petition for condonation, had the occasion to deal with the term 'sufficient cause' which is reproduced below: "16. The term 'sufficient cause' is not defined under section 2 of the Limitation Act, but the same, it means and so far has been construed as beyond control of the party seeking indulgence for extension of the period of limitation. But from a bare perusal of section 5 of the Limitation Act and its preamble, it manifests that Limitation Act is an exhaustive code governing the law of limitation in respect of matters specially dealt with by it. This is why the law of limitation is a panacea to prevent disturbance or deprivation of what may have been acquired in equity of justice or what may have been lost by the parties of inaction/negligence or laches. The Courts are not permitted to travel beyond the provisions of the Act or to supplement them. The Court cannot grant exemption from limitation on equitable consideration or on the ground of hardship. 17. The Courts are not permitted to travel beyond the provisions of the Act or to supplement them. The Court cannot grant exemption from limitation on equitable consideration or on the ground of hardship. 17. Having regard to the aforesaid decisions relied upon by the learned counsel on behalf of the respondent and also having given my thoughtful consideration to the rival contentions of the learned counsel appearing for the parties, I am of the considered view that no sufficient cause as discussed in Wood Crafts Product's case (supra) has been shown in this present application for condonation. It is needless to say that no cut and dried formula can be adopted as to what constitutes 'sufficient cause' in a given case, where sufficient cause shown or not depends upon the fact of the case. In the instant case, delay consumed in prosecuting the review of the impugned judgment and order, cannot be accepted to be 'sufficient cause'. 18. In that view of the matter, I am of the opinion that this is not a fit case for condonation of delay of 575 days. It appears to me that in filing this revision petition after such delay, the petitioner has not acted bonafide and such action of the peti­tioner has been reflected from the very fact that there is no reasonable explanation of such delay, as mentioned in the grounds in the application for condonation of delay, more particularly the petitioner has not taken any action to explain the delay in filing this application after the dismissal of the review petition on 8.12.2000. For the reasons and discussions as indicated above, this condonation petition is dismissed. No costs.