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2005 DIGILAW 204 (GAU)

Obilet Tariang v. Pravirkr Roy

2005-03-11

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. This petition under Rule 36(A) of the Rules for the Administration of Justice and Police in the Khashi and Jaintia Hills, 1937 (hereafter referred to as "the Rules") read with Article 227 of the Constitution of India is directed against an order condoning the delay in preferring an appeal against the judgment and decree of the trial Court passed in a Title Suit. 2. The Petitioner herein instituted Title Suit (Ejection) No. 45(T)/2002 against the opposite party in the Court of the Assistant to the Deputy Commissioner, Shillong, for declaration that the latter is a defaulter in payment of rent, for evicting him from the suit property belonging to the Petitioner, for realization of arrear rent amounting to Rs.3,30,000/- for attachment and sale of the articles of the Defendant/O.P. and for cost of the suit. 3. On receipt of notice from the Court, the Defendant/O.P. entered appearance in the case. According to the Petitioner, in spite of granting repeated adjournments on 06.05.03, 02.06.03, 01.07.03, 01.08.03, 01.09.03 and 30.10.03 which was the last date given to the Defendant/O.P., no written statement was filed and thus, finally on 04.11.03, the adjournment sought for by the Defendant/O.P. was rejected. The suit was posted for ex-parte hearing on 08.12.03. On 08.12.03 despite the order for ex-parte hearing, an application was filed on behalf of the O.P. once again seeking adjournment of the case which was refused by the trial Court. Thereafter by judgment and decree dated 11.12.03 the suit was decreed in favour of the Plaintiff/Petitioner by the trial Court. 4. Pursuant to the aforesaid judgment and decree dated 11.12.03 passed by the learned trial Court, the Petitioner filed an application for execution of the decree which was registered and numbered as Title Execution Case No. 2(T)/04. In the execution proceeding the Defendant/O.P. entered appearance and filed an application on 28.05.04 under Order 21, Rule 58 and 59 read with Section 151 of the Code of Civil Procedure praying for stay of sale of the articles belonging to him and the matter was then fixed on 27.07.04 for hearing. Meanwhile, the opposite party preferred an appeal being RFA No. 1(T)/2004 in the Court of Additional Deputy Commissioner, Shillong against the aforesaid judgment and decree dated 11.12.03 passed by the Trial Court in T.S. (Ejectment) 45 (T)/02. Meanwhile, the opposite party preferred an appeal being RFA No. 1(T)/2004 in the Court of Additional Deputy Commissioner, Shillong against the aforesaid judgment and decree dated 11.12.03 passed by the Trial Court in T.S. (Ejectment) 45 (T)/02. Since there was a delay of 150 days preferring the appeal, the opposite party also filed an application seeking condonation of delay in preferring the appeal which was registered and numbered as Misc. Application No. 24/04. 5. By the impugned order dated 27.08.04, the appellate Court condoned the delay. It is this order which is under challenge in this proceeding initiated by the Plaintiff/Petitioner. According to the Petitioner, the appellate Court did not take into consideration, the callous and negligent attitude of the opposite party throughout the proceeding and even in making the application for condonation of delay and thus, could not have condoned the delay holding that there was no negligence or laches on the part of the opposite party. According to the Petitioner such negligence and laches are so glaring on the face of the records that the appellate Court, not to speak of holding that there was no negligence and laches on the part of the opposite party, could not have condoned the delay there being no explanation for condonation of delay. 6. Placing reliance on the decisions of the Apex Court as reported in (1997) 7 SCC 556 (P.K. Ramachandran v. State of Kerala and Ors.) and (1996) 6 SCC 267 (State of Karnataka v. S.M. Kotrayya), Mr. H. Roy, learned Sr. counsel in support of his arguments advanced on behalf of the Plaintiff/Petitioner submitted that the negligence and laches on the part of the opposite party is so glaring on the face of it that the appellate Court could not have condoned the delay holding that there was no negligence and/or laches on the part of the opposite party. Taking objection to the approach of the appellate Court in condoning the delay on the ground that the appellate Court being a Court of equity as well as of law, Mr. Roy, learned Sr. counsel submitted that in the matter of condonation of delay which is governed by the statutory rules, there is no question of invoking the equity jurisdiction. Taking objection to the approach of the appellate Court in condoning the delay on the ground that the appellate Court being a Court of equity as well as of law, Mr. Roy, learned Sr. counsel submitted that in the matter of condonation of delay which is governed by the statutory rules, there is no question of invoking the equity jurisdiction. Referring to the conduct of the opposite party, he submitted that the appellate Court ought to have taken a serious view of the matter, but instead, adopted a casual approach to the matter so much so that while condoning the delay, even held that there was no negligence and/or laches on the part of the opposite party. 7. Mr. N. Dutta, learned Sr. counsel appearing for the opposite party, on the other hand at the very out set submitted that in the matter of condonation of delay a liberal approach is required to be adopted and that the appellate Court acted within its jurisdiction in condoning the delay. He submitted that in exercise of revisional jurisdiction, this Court will not go into the facts. He finally submitted that the Appellate Court having exercised its jurisdiction vested by law and there being no jurisdictional error, the revisional Court will be reluctant to interfere with the impugned order by which the delay in preferring the appeal has been condoned. He placed reliance on the following decisions in support of his submissions: 1) AIR 1996 SC 1321 (Shyam Sunder Agarwal and Co. v. Union of India) 2) AIR 1969 (A & N) 92 (Ka Idis Mary Khar Kongor v. Ka Theirit Lyngdoh) 3) 2002 (2) GLT 78 (National Insurance Co. v. Meghalaya Plywoods Ltd.) 4) 1994 (1) GLR 61 (Meghalaya State Electricity Board v. Ambunath Choudhury) 8. Before I consider the submissions advanced by the learned Counsel for the parties, it will be appropriate to refer to the Application (Misc. Case 24/04) by which the prayer was made for condonation of delay to appreciate the arguments and the case laws. According to the Defendant/opposite party, the factum of passing the impugned judgment and decree dated 11.12.03 came to his knowledge on 28.05.04 and it was only thereafter he could file an application under Order 21, Rule 58 and 59 in Title Execution Case No. 2(T)/04 praying for stay of sale of the articles belonging to him and lying in the tenanted premises. The statements made in this regard in paragraph 2 of the application for condonation of delay are quoted below: 2. That the Petitioner states that after the ex-parte judgment and decree had been passed the opposite party then filed Title Execution Case No. 2(T) of 2004 for execution of the judgment and decree dated 11.12.03. Subsequently, when it came to the knowledge of the Petitioner on 28.05.04, the Petitioner then filed an application under Order 21 Rule 58 and 59 in Title Execution No. 2(T) of 2004 praying for stay of the sale of Articles belonging to the Petitioner which are lying in the tenanted premises. The learned Assistant to the Deputy Commissioner was then pleased to keep the sale of Articles in abeyance and fixed the matter for hearing on 27.07.04. 9. As regards the proceeding before the trial Court, the opposite party in his aforesaid application made a statement that he was diligent enough to appear in every date since his appearance in the trial Court on 31.03.03. According to the opposite party he missed the date, i.e. 04.11.03 on which date the trial Court passed an order for ex-parte hearing of the suit fixing the matter on 08.11.03. Further stand of the opposite party in his said application was that on 08.11.03, the date fixed for ex-parte hearing, he again filed an adjournment petition, but the same was rejected on the ground that, already an order dated 04.11.03 was passed fixing the matter for ex-parte hearing on 08.11.03. According to the opposite party, after having rejected the prayer for adjournment on 08.11.03, the next date of the case was fixed just after two days, i.e. on 11.12.03 for judgment keeping the opposite party in dark and that he was not even aware of the judgment which was delivered in open Court. As per the statement made in the said application, the opposite party was under the impression that since the next date of cases is normally fixed after about one month and that the winter vacation of the Court was fast approaching, he thought that the matter would be listed after the vacation. 10. All these averments made in the application for condonation of delay are in paragraphs 3, 4 and 5 which are quoted below: 3. 10. All these averments made in the application for condonation of delay are in paragraphs 3, 4 and 5 which are quoted below: 3. That the Petitioner states that when the suit proceeded for filing of written statement in the earlier stage, the counsel for the Defendant have been diligent enough to appear on every date since filing of die Vakalatnama on 31.03.03 praying for time to file his written statement as he did not receive any instructions as the instant matter is also related to a Criminal Revision No. 1(SH) 2003 pending before the Hon'ble Gauhati High Court, Shillong Bench. As die counsel of the Petitioner was still awaiting instructions, inadvertently missed out the next date i.e. 04.11.03 wherein the learned Trial Court had passed an order for Ex-parte hearing and was pleased to fix the matter on 08.12.03 for Ex-parte hearing. It may be mentioned that this is the only time when the counsel for the Appellant/Defendant missed the date in the suit The date was also not reflected in the cause list of the Court and for this reason the Appellant missed the date. 4. That the Petitioner states that as the counsel was still awaiting instructions, the Petitioner on 08.12.03 again filed adjournment petition, which was registered as petition No. 128/03. The Learned Assistant to the Deputy Commissioner rejected the same on the ground that orders for ex-parte hearing have already been passed on 04.11.03. 5. That the Petitioner states that surprisingly, after the petition for adjournment was rejected on 08.12.03, the next date fixed was just after 2 (two) days, i.e. 11.12.03, for judgment keeping the Petitioner in the dark who was not even aware of the judgment which was delivered in open court on a very short date. The Petitioner was under the impression that normally every date fixed is after 1 (one) month and as winter vacation was approaching the counsel of the Petitioner thought that the matter would be listed after vacation. 11. After the aforesaid statement in the application for condonation of delay, the Petitioner stated in his application that the Civil Court was closed for two months on account of winter vacation and reopened in the first week of February, 2004. Thereafter the counsel for the opposite party consulted the cause list, but the Title Suit in question was not indicated specifying the next date. Thereafter the counsel for the opposite party consulted the cause list, but the Title Suit in question was not indicated specifying the next date. In such a situation, the counsel for the opposite party was under the purported impression that necessary orders had been not been passed in the case. It was only on 25.05.04, the opposite party could come to know that the matter had proceeded ex-parte and the impugned judgment and decree had been passed, thereafter, the Petitioner applied for the certified copy on 26.05.04 and the same was received on 27.05.04. On 28.05.04, the opposite party filed an application in the Execution proceeding before the trial Court praying for stay of sale of the articles belonging to him. The matter was fixed on 28.06.04 for filing of show cause reply and the same was filed by the opposite party. Thereafter, the matter was fixed for hearing on 27.07.04. In this connection, the statements made by the opposite party in paragraphs 7, 8 and 9 of the application for condonation of delay are quoted below: 7. That the Petitioner states that thereafter the Civil Court was closed for two months on account of winter vacations. The Civil Court reopened on the first week of February, 2004 but strangely when the counsel for the Petitioner/judgment debtor on the month of February, 2004 checked the cause list the case was never listed in the cause list. As the case did not reflect in the cause list the counsel was of the impression that necessary orders have not been passed to this effect. 8. That the Petitioner states that only on 25.05.04 the Petitioner came to know that the matter had proceeded ex-parte and judgment and decree have already been passed. Thereafter, the Petitioner applied for the certified copy on 26.05.04 and the same was received on 27.05.04. 9. That the Petitioner states that he then filed an application for stay of sale of the articles belonging to him on 28.05.03, the matter was then fixed on 09.06.04 for hearing. The counsel for the opposite party/decree holder requested the learned Assistant to Deputy Commissioner for allowing him to file his show cause. The matter was then fixed on 28.06.04 for show cause, the counsel for the opposite party/decree holder filed his show cause and the matter is fixed for bearing on 27.07.04. 12. The counsel for the opposite party/decree holder requested the learned Assistant to Deputy Commissioner for allowing him to file his show cause. The matter was then fixed on 28.06.04 for show cause, the counsel for the opposite party/decree holder filed his show cause and the matter is fixed for bearing on 27.07.04. 12. With the aforesaid statements made by the Petitioner which according to him constituted "sufficient cause", the prayer for condonation of delay was made and the appellate Court condoned the delay holding that there was no negligence or laches on the part of the opposite party and that the delay was duly explained. Another ground assigned towards condonation of delay is that the appellate Court being a Court of equity as well as of law, the delay needed to be condoned to hear the appeal on merit for ends of justice. 13. From the averments made in the application for condonation of delay, the basic theme of the case of the opposite party towards condonation of delay which emerges is that the opposite party inadvertently missed the date fixed by the trial Court on 11.12.03 on which date an order was passed for ex-parte hearing of the matter on 08.12.03. However, nothing was stated in the application as to how the opposite party could gather the information relating to passing of the order on 04.11.03 fixing the next date as 08.12.03 and could appear and file an application on 08.12.03 seeking adjournment of the case. The opposite party knew that the application seeking adjournment was rejected on 08.12.03 and thus naturally, also ought to have known that the matter was fixed on 11.12.03 for judgment. However, in paragraph 5 of the petition for condonation of delay, the opposite party made the statements that he was not aware of the next date fixed, i.e. on 11.12.03, on which date the judgment was delivered in the open Court. 14. After the aforesaid date, 08.12.03 and delivery of the judgment on 11.12.03, nothing was done in the matter by the opposite party on the purported ground of not being aware of the next date after 08.12.03. According to the statements made in the application he was under the impression that, as is done in the normal course, the matter would be fixed after one month. According to the statements made in the application he was under the impression that, as is done in the normal course, the matter would be fixed after one month. In the meantime, the winter vacation came and the Court reopened only in the first week of February, 2004. Even then also, the opposite party could not gather the information relating to the passing of the judgment and decree on 11.12.03 till 25.05.04. The ground assigned is non-mentioning of the case in the cause list. In paragraph 8 of the application the opposite party simply stated that he could come to know about the ex-parte judgment and decree passed on 11.12.03 only on 25.05.04. However, nothing was stated as to how he could gather the information on 25.05.04, i.e. after more than six months of the date of passing of the judgment and decree on 11.12.03. Nothing was also stated as to what he did, when the matter was not indicated in the cause list during the period from 11.12.03 to 25.05.04. 15. Learned Counsel for the parties have produced a copy of the order sheet of the appellate Court. As per the said order sheet, the Defendant/opposite party appeared in the trial Court on 31.03.03 and thereafter he prayed for time for filing written statement on various dates. The dates are 31.03.03, 01.05.03, 02.06.03, 01.08.03 and 30.09.03. On 30.09.03, the trial Court granted time to the Defendant/opposite party till 04.11.03 as a last chance. On 04.11.03, the Defendant/opposite party was absent without any step and the trial Court recorded the fact of non-filing of written statement inspite of granting several adjournments. Accordingly the matter was fixed for ex-parte hearing on 08.12.03. On 08.12.03 the Defendant/opposite party appeared before the trial court and prayed for time by filing petition No. 128/03. The trial Court rejected the prayer in view of the fact that the earlier order dated 04.11.03 was passed fixing the matter for ex-parte hearing. On 08.12.03, the trial Court recorded the evidence of the Plaintiff/Petitioner and fixed the matter on 11.12.03 for judgment and on 11.12.03 the judgment was delivered in the open Court. 16. The trial Court rejected the prayer in view of the fact that the earlier order dated 04.11.03 was passed fixing the matter for ex-parte hearing. On 08.12.03, the trial Court recorded the evidence of the Plaintiff/Petitioner and fixed the matter on 11.12.03 for judgment and on 11.12.03 the judgment was delivered in the open Court. 16. Although the Defendant/opposite party made a statement in the application for condonation of delay that he missed out the date (04.11.03) on which date the Trial Court passed an order for ex-parte hearing fixing the matter on 08.12.03, on 08.12.03 the opposite party duly appeared before the trial Court by filing the application seeking adjournment of the case. On 08.12.03, the trial Court rejected the prayer for adjournment and fixed the matter for judgment on 11.12.03. Thus, when the opposite party was very much present in the Court by filing an application seeking adjournment of the case which was registered and numbered as Petition No. 128/03, his statement in the application for condonation of delay to the effect that he was not aware of the next date fixed, i.e. on 11.12.03, is contrary to his own stand. 17. In the application for condonation of delay the opposite party even stated about the order passed on 08.12.03 rejecting the prayer made in the petition No. 128/03 seeking adjournment of the case. Thus the stand that he was not aware of the next date fixed, is somewhat surprising inasmuch as by the same very order dated 08.12.03, the trial Court while entertaining and rejecting the adjournment petition being No. 128/03 filed by the opposite party, the learned trial Court also recorded about the evidence led on behalf of the Plaintiff/Petitioner and the next date fixed on 11.12.03 for judgment. 18. Thus, the question necessarily arises, whether it is at all palpable that the Defendant/opposite party could come to know about the order passed on 08.12.03 rejecting the prayer for adjournment, but not about the next date fixed on 11.12.03. The order dated 08.12.03 is a composite order rejecting the prayer for adjournment, recording the evidence led by the Plaintiff/Petitioner and fixing the next date on 11.12.03. Thus, the Defendant/opposite party could not have urged and cannot urge that he was aware only a part of the order and not the composite order passed on 08.12.03. 19. The order dated 08.12.03 is a composite order rejecting the prayer for adjournment, recording the evidence led by the Plaintiff/Petitioner and fixing the next date on 11.12.03. Thus, the Defendant/opposite party could not have urged and cannot urge that he was aware only a part of the order and not the composite order passed on 08.12.03. 19. In view of the above, the explanation furnished by the Defendant/opposite party in respect of his plea of not being aware of the next date fixed, i.e. on 11.12.03, by order dated 08.12.03, is not at all acceptable. Even thereafter also the Defendant/opposite party did not do anything in the matter. A man of ordinary prudence would have enquired about the matter even if the explanation furnished by the Defendant/opposite party in respect of the order dated 08.12.03 is accepted. His explanation that in the normal course the next date is fixed after about one month and so he was under the impression that the next date would be fixed about one month thereafter from 08.12.03, is also not acceptable; firstly because the next date was already indicated in the order dated 08.12.03 in the proceeding in which the Defendant/opposite party duly participated by filing his adjournment petition. If his explanation of listing of cases nearly after one month is to be accepted, same will also destroy the case of the Defendant/opposite party. In such circumstances, his explanation of consulting case diary and there being no indication of the case cannot be accepted. If this explanation is accepted, then in the normal course the Defendant/opposite party would have enquired about the case in the Court itself. When he could do it by consulting the case diary of the same very Court, I see no reason as to why in such a situation he could not enquire about the case itself. 20. The opposite party remained silent in the matter from 11.12.03 to 25.05.04 on which date he purportedly came to know about the judgment and decree passed on 11.12.03. The delay for the period from 11.12.03 to 25.05.04 has been attributed to the case diary and the winter vacation which ended in the first week of February, 2004. The Petitioner purportedly kept on consulting the case diary for the months of February, March, April and May which is not at all applicable. The delay for the period from 11.12.03 to 25.05.04 has been attributed to the case diary and the winter vacation which ended in the first week of February, 2004. The Petitioner purportedly kept on consulting the case diary for the months of February, March, April and May which is not at all applicable. Even if the explanation furnished by the Petitioner that he was not aware of the part of the order dated 08.12.03 and the order passed on 11.12.03, a man of ordinary prudence and diligence would not have awaited till 25.05.04. There is absolutely no explanation from the Defendant/opposite party in respect of the period from 11.12.03 to 25.05.04 except blaming the cause list and the intervening winter vacation, unmindful of his own blameworthiness arising out of his own negligence, laches and casual approach to the matter, so glaring on the fact of it. 21. There is Anr. aspect of the matter. In paragraph 8 of the application for condonation of delay the Defendant/opposite party after trying to cover up the period from 11.12.03 to 24.05.04 blaming the cause list and the intervening winter vacation, made a statement that he could come to know about the order passed on 11.12.03 only on 25.05.04. However, nothing was stated in the application as to what was the source of information so as to come to know only on about the order passed on 11.12.03. Thus, it is a case of "no explanation" covering the period from 11.12.03 to 25.05.04. It is also a case of "non-disclosure" of source of information so as to submit that it was only on 25.05.04, the Defendant/opposite party could come to know about the impugned judgment and decree passed on 11.12.03. 22. Now the question for consideration is as to whether in the aforesaid clear factual aspect of the matter, the appellate Court could have condoned the delay by the impugned order dated 27.08.04 and that too, holding that there was no negligence and laches on the part of the Defendant/opposite party. The question also arises as to whether the delay could have been condoned invoking the equity jurisdiction and applying the test of "ends of justice". 23. The question also arises as to whether the delay could have been condoned invoking the equity jurisdiction and applying the test of "ends of justice". 23. In the case of S.M. Kotrayya (supra), the Apex Court reversing the order of the Central Administrative Tribunal (CAT) in condoning the delay observed that the Tribunal would be required to satisfy itself whether the explanation offered was proper explanation. In that case, the explanation offered was that the Petitioner could come to know about the relief granted by the Tribunal in August, 1989 and that they filed the petition immediately thereafter. The Apex Court held that such an explanation was not a proper explanation at all. Accordingly the delay condoned by the Tribunal was held to be wholly unjustified. 24. In the case of P.K. Ramchandran (supra), the Apex Court dealing with the essential pre-requisites for exercise of discretion to condone the delay emphasized that the Court must record its satisfaction that the explanation for delay was either reasonable or satisfactory. In paragraph 6 of the judgment the Apex Court observed as follows: 6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. 25. In the instant case the appellate Court apart from holding that there was no negligence or laches on the part of the Defendant/opposite party in preferring the appeal also invoked the equity jurisdiction and the principle relating to ends of justice. 26. As per the provision of Rule 36(A) of the Rules, an appeal shall lie to the Deputy Commissioner against the order passed by an Assistant to the Deputy Commissioner. The period of limitation prescribed for such an appeal is 30 days from the date of the decision excluding the time required for obtaining a copy of the order. 26. As per the provision of Rule 36(A) of the Rules, an appeal shall lie to the Deputy Commissioner against the order passed by an Assistant to the Deputy Commissioner. The period of limitation prescribed for such an appeal is 30 days from the date of the decision excluding the time required for obtaining a copy of the order. Thus, the Defendant/opposite party was required to prefer the appeal within 30 days from 11.12.03, the date on which the impugned judgment and order was passed. He was entitled to count the time required for obtaining a copy of the judgment and decree. However, in the instant case the Defendant/opposite party did not prefer the appeal within 30 days from 11.12.03, but the same was preferred after a lapse of 150 days. This delay of 150 days was sought to be explained in the manner as noticed above. In the aforesaid case of R.K. Ramachandran (supra) the Apex Court observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. 27. In the case of Kotrayya (supra) the Apex Court dealt with the provisions of Section 21 of the Administrative Tribunal Act, 1985 prescribing the period of limitation and the power of the Tribunal to condon the delay. The Apex Court found that the explanation furnished by the Petitioners was not proper explanation at all. In the instant case also there is no proper explanation as to why the Defendant/opposite party could not prefer the appeal in time and what actually caused the delay. As noticed above, the Defendant/opposite party took the plea of no knowledge of the part of the order dated 08.12.03 fixing the matter on 11.12.03, but at the same time stated that he was aware of rejection of his prayer for adjournment by the same very order. The Defendant/opposite party could not have taken the plea of not knowing about the part of the order. There is no explanation in this regard. 28. It is not the case of the Defendant/opposite party that two separate orders were passed on 08.12.03, one in respect of the rejection of prayer for adjournment and Anr. regarding taking evidence of the Plaintiff/Petitioner and fixing the date on 11.12.03. There is no explanation in this regard. 28. It is not the case of the Defendant/opposite party that two separate orders were passed on 08.12.03, one in respect of the rejection of prayer for adjournment and Anr. regarding taking evidence of the Plaintiff/Petitioner and fixing the date on 11.12.03. The Defedant/opposite party while giving explanation that he was not aware of the date fixed on 11.12.03 by order dated 8.12.03, stated in his application about the rejection of his prayer of adjournment by the same very order dated 08.12.03. Thus, the stand of the Defendant/opposite party is contradictory and there is no explanation relating to the same in the revision application. The cause shown for condonation of delay not to speak of constituting sufficient cause, as required for condonation of delay, is self contradictory. 29. In the case of Shyam Sunder Agarwal (supra), the Apex Court held that the revisional power under Rule 36 (a) as envisaged in the aforesaid Rules is to be exercised in conformity with the revisional power under Section 115 of the Code of Civil Procedure However, the full Bench of this Court in the case of Ka Idis Marry (supra) held that the High Court in exercise of revisional power, will be entitled to go in to the facts like an appellate Court. 30. In the case of Ambunath Choudhury (supra), it was reiterated that the matter relating to condonation of delay is a discretionary power rests on the Court in which the prayer for condonation is made. It was emphasized that such discretion is to be exercised judicially and reasonably. Once the Court exercises discretion reasonably and judicially, the High Court either by way of appeal of by way of revision or writ should not interfere with such order. Thus, the test is judiciousness and reasonableness of the discretion exercised by the Court. In the instant case on the face of the facts narrated above, the findings recorded by the Appellate Court that there was no negligence or laches on the part of the Defendant/opposite party, is a perverse finding and cannot withstand the test of judiciousness and reasonableness. 31. In the instant case on the face of the facts narrated above, the findings recorded by the Appellate Court that there was no negligence or laches on the part of the Defendant/opposite party, is a perverse finding and cannot withstand the test of judiciousness and reasonableness. 31. The appellate Court also invoked the equity jurisdiction towards condoning the delay in respect of which the Apex Court in the aforesaid case of R.K. Ramchandran (supra) observed that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. Thus, both on facts as well as on law the impugned order dated 27.08.04 condoning the delay in preferring the appeal against the judgment and decree dated 11.12.03 is not sustainable. 32. In the case of Meghalaya Plywoods Ltd. (supra), this Court held that in view of the law laid down by the Apex Court in the aforesaid case of Shyam Sunder Agarwal (supra) the revisional powers of the High Court under Rule 36(a) has to be exercised in conformity with the revisional powers Under Section 115 of the Code of Civil Procedure It was further held that law laid down by the Full Bench in the case of Ka Idis Marry (supra) is no longer good law in view of the aforesaid decision of the Apex Court in Shyam Sunder Agarwal (supra). As regards the period of limitation prescribed under the Rule 36(a) and 41 of the aforesaid Rules, it was held that the provisions of Limitation Act, 1963 are applicable in respect of the aforesaid Rules of 1937. In that case also this Court was concerned with the question of limitation in preferring the appeal. It was observed that there should be proper explanation for condonation of delay, howsoever brief the period of delay may be. It was observed that there cannot be any doubt that when sufficient cause is not shown, application for condonation has to be dismissed on that ground alone. 33. The decisions on which the learned Counsel for the Defendant/opposite party placed reliance are no help to the case of the Defendant/opposite party. It was observed that there cannot be any doubt that when sufficient cause is not shown, application for condonation has to be dismissed on that ground alone. 33. The decisions on which the learned Counsel for the Defendant/opposite party placed reliance are no help to the case of the Defendant/opposite party. The argument that in exercise of revisional jurisdiction, this Court will not make any roving enquiry so far as the facts are concerned is simply not acceptable. A bare minimum fact will have to be referred to even in exercise of revisional jurisdiction. While doing so in the instant case, it is apparent on the face of the records that on the basis of those factual aspect of the matter, the findings recorded by the Appellate Court in condoning the delay are perverse and based on non-existent fact. 34. When the statute itself has prescribed the period of limitation, of course with the power of condoning the delay, same will have to be exercised with sound discretion and the delay cannot be condoned merely on asking for it. The explanation furnished by the Defendant/opposite party are ex-facie contradictory and on the basis of such explanation furnished, the appellate Court could not have held that there was no negligence or laches on the part of the Defendant/opposite party. On the fact of it, negligence and laches on the part of the Defendant/opposite party are glaring and this being the position, the finding recorded by the appellate Court contrary to the same is a perverse finding not sustainable in law. Moreover, the appellate Court on the face of the statutory provisions could not have invoked the equity jurisdiction and applied the test of "ends of justice". It was not a matter of charity for the appellate Court to condone the delay, merely on asking for it without addressing itself to the above factual aspect of the matter. 35. The law of limitation has not been prescribed under the statute merely to play with it with misplaced lenient approach. Same will have to be applied with its full vigour about which the Apex Court in the aforesaid case of P.K. Ramachandran (supra) put emphasis. Even after sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right. Same will have to be applied with its full vigour about which the Apex Court in the aforesaid case of P.K. Ramachandran (supra) put emphasis. Even after sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right. The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafide falls for consideration. If sufficient cause is not proved, nothing further has to be done; the application for condonation of delay has to be dismissed on that ground alone. When the period of limitation prescribed has expired, the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, decree-holder by lapse of time should not be light-heartedly disturbed. 36. In the instant case the Defendant/opposite party all along played with the time of the Court firstly by not submitting written statement before the trial Court and secondly by not preferring appeal in time inspite of the own admission of knowing the date fixed on 08.12.03 on which date he submitted application seeking adjournment of the case. After submitting to the jurisdiction of the trial Court in that manner, he ought to have awaited for the order to be passed on that date. After making the application praying for adjournment on 08.12.03, it was incumbent on the part of the Defendant/opposite party to await for the order to be passed in the proceeding instead of blaming the Court that the crucial date, i.e., 11.12.03 was fixed just within two days on conclusion of the hearing on 08.12.03, as if the Court was not competent to pass the judgment and decree within two days on conclusion of the hearing. 37. As noticed above, the order dated 08.12.03 was a composite order in which rejection of prayer for adjournment and recording of evidence adduced by the Plaintiff/Petitioner were recorded fixing the next date as 11.12.03. Had it been a case that the Petitioner was not aware of the date (08.12.03), the things would have been different. 37. As noticed above, the order dated 08.12.03 was a composite order in which rejection of prayer for adjournment and recording of evidence adduced by the Plaintiff/Petitioner were recorded fixing the next date as 11.12.03. Had it been a case that the Petitioner was not aware of the date (08.12.03), the things would have been different. Although he made a statement that he was not aware of fixing the matter on 08.12.03 as was fixed by the earlier order dated 04.11.03, but he dully appeared before the Court on 08.12.03 by filing an application seeking adjournment of the case. 38. Even after the aforesaid date, i.e. on 08.12.03, the Petitioner did not make any effort to get a copy of the order dated 11.12.03, instead took a plea of not knowing about the order passed on 11.12.03. He put blame on the cause list and the intervening winter vacation unmindful of his own negligence and laches in not ascertaining the date from the case records, even if his explanation that he was not aware of the next date fixed on 11.12.03 is accepted. As emphasized by the Apex Court time and again, the explanation towards condoning the delay must be plausible and reasonable which is totally missing in the instant case. The explanation furnished can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. On the basis of the facts and circumstances so staring on the face of it, the appellate Court could not have condoned the delay holding that there was no negligence or laches on the part of the Defendant/opposite party and that too invoking the equity jurisdiction and applying the test of "ends of justice". 39. The discretion applied by the appellate Court was, thus, neither proper nor judicious. Discretio est discernere per ligem quid sit justum (Discretion consists in knowing What is just in law). Discretion is to know through law what is just. Exercise of a judicial discretion is unappealable, unless the same is based on mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It is that discernment which enables to judge critically of what is correct and proper invited with caution, to discern between falsity and truth, between shadow and substance. Exercise of a judicial discretion is unappealable, unless the same is based on mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It is that discernment which enables to judge critically of what is correct and proper invited with caution, to discern between falsity and truth, between shadow and substance. It has to be done according to rules of reasons and justice, not according to private opinion. It has to be done according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. Therefore, when the legislature concedes wide discretion, it also imposes a heavy responsibility. The appellate Court having not addressed itself to the aforesaid factual and legal aspect of the matter, the discretion applied by it cannot be said to be in the touch tone of the principles involving exercise of sound discretion. 40. For the foregoing reasons, I am of the considered opinion that the exercise of revisional jurisdiction is called for in the instant case which I accordingly do by setting aside the impugned order dated 27.08.04 by which the Misc. case No. 24(T)/04 seeking condonation of delay in preferring R.F.A. No. 1 (T)/04 was allowed by condoning the delay. Consequent upon setting aside the impugned order dated 27.08.04 passed by the Court of Additional Deputy Commissioner, Shillong in Misc. Case No. 24(T)/04, the application for condonation of delay stands rejected and consequently the RFA No. 1(T)/04 stands dismissed. 41. The revision application stands allowed leaving the parties to bear their own costs. Application dismissed.