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2003 DIGILAW 405 (CAL)

Bankim Chandra Paul v. Bhagyabala Dasi

2003-08-08

JOYTOSH BANERJEE

body2003
JUDGMENT Joytosh Banerjee, J. 1. This hearing arises out of an application (C.A.N. No. 4927/2002) filed by the legal representatives of the sole defendant/appellant who were substituted in place of deceased defendant/appellant by an order dated 14.2.2000, praying for condonation of delay in filing an application for restoration of the second appeal which was dismissed for default. 2. Relevant facts leading to the filing of the instant application are as follows:- The plaintiff/respondent filed a suit for eviction which was registered as T.S. No. 2621/79 before the 3rd Court of Munsif at Sealdah. The learned Trial Court by its judgment dated 23.4.89 decreed the suit on contest and the defendant/appellant was directed to deliver khas possession of the suit property in favour of the plaintiff/respondent within 60 days from the date of judgment. Being aggrieved by such order, the defendant went in appeal being T.A. No. 16/90 before the Assistant District Judge, Sealdah, which court by the judgment dated 19.12.90 dismissed the appeal and affirmed the judgment and decree passed by the Trial Court in T.S. No. 261/79. Thereafter the sole defendant approached this court through the second appeal being S.A. No.106/92 (S.A.T. 1252/91) which was admitted by an order dated 19.8.91. Ultimately when the second appeal was ready for hearing it came before me for hearing when I had necessary determination to take up second appeal. The appellant was found absent on many occasions, so the second appeal was ultimately dismissed for default by an order dated 22.8.2001. Thereafter the substituted appellants as petitioners filed an application under Order 41 Rule 19 read with Order 42 of the Civil Procedure Code for restoration of the appeal after recalling the order dated 22nd August, 2001, on 10th of June, 2002 (C.A.N. No. 4726/2002) on the same day, the petitioners also filed an application under section 5 of the Limitation Act, 1963 for condonation of delay of about 8 months and 19 days for reasons stated in the application. 3. So the only point for my consideration here is whether the petitioners had sufficient cause for not filing the application for restoration within the period of limitation. 4. Regarding the inordinate delay in filing the application for restoration, the petitioners case is that their advocate Mr. Md. Yasin Ali and his registered clerk and also their advocate on record Ms. So the only point for my consideration here is whether the petitioners had sufficient cause for not filing the application for restoration within the period of limitation. 4. Regarding the inordinate delay in filing the application for restoration, the petitioners case is that their advocate Mr. Md. Yasin Ali and his registered clerk and also their advocate on record Ms. Mita Biswas missed the matter in the list and as a result of the same the learned Advocates failed to appear when the matter was called on for hearing resulting in the dismissal of the appeal. It is also alleged that with a view to ascertain the condition of the appeal and to ascertain whether there was anything required to be done by the petitioner in connection with the appeal, the petitioner No. 4 Sri Ajit Paul came to the chamber of the learned Advocate appearing in the matter in the 2nd week of May, 2002 whereupon the learned Advocate directed his clerk to file an Application for inspection of the records of the case and an application for Inspection was filed on 17th of May, 2002 for the aforesaid purpose. The petitioners came to know from Mr. Md. Yasin Ali, learned Advocate that the appeal had been dismissed for default by an order dated 22nd August, 2001. The aforesaid allegations have been made through paras 9, 10, 15 and 16 of the petition. The question therefore is whether the aforesaid circumstances as alleged in the petition constitute sufficient cause ? It is true that the words ‘sufficient cause’ should receive a liberal construction. But at the same time, it is also true that the period of limitation would not be extended on the basis of a mere application under section 5 of the Limitation Act. For the sufficiency of the cause, the court is required to look into all the facts of the case. The question has to be decided on the facts and circumstances existing in a particular case. No doubt, the consideration of existence of sufficient cause is discretionary power with the court but such a discretion has to be exercised on sound judicial principle and not on mere fancy or whims of the court. The question has to be decided on the facts and circumstances existing in a particular case. No doubt, the consideration of existence of sufficient cause is discretionary power with the court but such a discretion has to be exercised on sound judicial principle and not on mere fancy or whims of the court. Now let us examine the whole facts and circumstances in order to come to conclusion whether the total facts and circumstances alleged here have made out a case of 'sufficient cause' or not. In para-13, the petitioners have indicated that the second appeal in question was listed for hearing in the' Cause List on the following dates :- (i) August 13, 2001, (ii) August 14, 2001, (iii) August 16, 2001, (iv) August 17, 2001 (v) August 20, 2001, (vi) August 21, 2001 and (vii) August 22, 2001. In paragraph 14 of the petition, the petitioners have further admitted that the matter was called for hearing at least on 3 different dates prior to August 22, 2001 when the appeal was dismissed for default. The precise reason for the absence of the appellant or their learned Advocate is that the learned Advocates on record as well as the clerk of the learned Advocate for the petitioners, failed to take notice of the fact that the appeal was listed for hearing. Undoubtedly this is an allegation which clearly indicates, the gross indifferent attitude of the persons responsible for proceeding with the appeal. In fact, the only ground which has been alleged for such unusual conduct of so many persons is that the petitioners and their Advocates never mentioned before the court to list the appeal for hearing (vide Para-17 of the petition). It should be pointed out that the appeal in question was an old appeal. So the same was listed before the Bench presided over by me when I had the necessary determination. It is not the rule that for an appeal to be listed before the appropriate Bench, it should be mentioned by the party or the Advocate before such Bench for that purpose. The learned Advocates generally mention a matter to be listed before a particular Bench when there is urgency or when the matter inspite of its age is not listed for any reason or the other. 5. The learned Advocates generally mention a matter to be listed before a particular Bench when there is urgency or when the matter inspite of its age is not listed for any reason or the other. 5. Not only the learned Advocates and the clerk attached to them failed to take note of the appeal inspite of the fact that the same appeared in the Cause List for a considerable period of time, the petition further goes to indicate that they remain oblivious of the fate of such appeal till May, 2002. Considering all these facts and circumstances it is evident that the delay for more than 8 months was• avoidable. In this connection I should refer to a decision of the Hon'ble Supreme Court in the case of P.K. Ramchandran vs. State of Kerala, reported in AIR 1998 SC 2276 wherein the Apex Court made the following observation regarding law of limitation:- "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds." Thus it is evident here that through the allegation raised by the petitioners they have failed to make out a case of sufficient cause, for condonation of delay for more than 8 months. Here it should not be out of place to mention that the respondent brought the suit for eviction of the tenant long back and both the Trial Court and the first appellate court decreed the suit and the second appeal was kept pending before this court since 1991. 6. Considering all these, I am constrained to hold that the applicant are not in a position to satisfy the court that they had sufficient cause for not making the application for restoration within the period of limitation. Therefore, the application under section 5 of the Limitation Act must fail and the same is accordingly dismissed. Since the application for restoration under Order 41 Rule 19 C.P. Code is admittedly barred by limitation and since the application under section 5 of the Limitation Act has been dismissed, the said application for restoration too stands dismissed. Application dismissed.