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2010 DIGILAW 877 (CAL)

Subrata Ghosh v. Malaya Ghosh

2010-07-28

PRASENJIT MANDAL

body2010
Judgment :- Prasenjit Mandal, J: This application is at the instance of one of the plaintiffs and is directed against the order dated 16.07.2008 passed by the learned Additional District & Sessions Judge, First Court, Purulia in Misc. Case No.5 of 2007 thereby allowing the application under Section 5 of the Limitation Act praying for condoning the delay in filing the review application. The fact of the case in short is that the plaintiff no.1, applicant herein, and the opposite party nos.1 to 5 and their mother (since deceased) filed a title suit bearing no.160 of 1986 in the Court of the learned Assistant District Judge, Purulia for recovery of khas possession of the suit property as described in the schedule of the plaint. That suit was dismissed by the learned trial Judge. Being aggrieved, the applicant and his mother, now deceased, filed the Title Appeal No.12 of 1999 before the learned Additional District Judge, Purulia. At that time, the opposite party nos. 1 to 5 were reluctant to joint the applicant to file the appeal disclosing that they have no interest in the subject matter and as such, the applicant made them as proforma respondents in the appeal. That title appeal was allowed in part directing the respondent nos.1 & 2 to pay compensation to the appellants in respect of excess .77 acres of land within three months. The opposite party nos.1 to 5 herein appeared before the learned Additional District Judge, Purulia by filing vakalatnama and contested the said title appeal but they did not file any written objection. Thereafter, the applicant filed the title execution case no.6 of 2003 for execution of the judgment and decree passed in the title appeal. Long time thereafter about six years, the opposite party nos.1 to 5 filed an application for review of the Misc. Case No.5 of 2007 before the learned Additional District Judge, Purulia and prayed for review of the judgment and decree in Title Appeal No.12 of 1999 dated 03.04.2002 and further prayed for direction to pay compensation to the proforma respondents also. The opposite parties also filed an application under Section 5 of the Limitation Act praying for condonation of delay in filing the review application. That application under Section 5 of the Limitation Act was allowed by the impugned order. The opposite parties also filed an application under Section 5 of the Limitation Act praying for condonation of delay in filing the review application. That application under Section 5 of the Limitation Act was allowed by the impugned order. Being aggrieved by the said order dated 16.07.2008, the applicant filed this application for setting aside the impugned order. Mr. Ghosh, learned Advocate appearing on behalf of the applicant, submits that the opposite party nos.1 to 5 did not join with the applicant in preferring the appeal against the order of dismissal of the suit. In that situation, the applicant had to file the title appeal against the order of dismissal making the opposite party nos.1 to 5 as proforma respondents in the title appeal and they took necessary steps for disposal of the appeal and an award of compensation was granted for acquisition of land by the State of West Bengal. Thereafter, the applicant prayed for execution of the decree for realisation of the dues against the State of West Bengal. At that time, when the application was to get money, the opposite party nos.1 to 5 appeared after a long gap of six years and preferred a review application along with a petition under Section 5 of the Limitation Act. The proforma respondents, i.e., opposite party nos.1 to 5 could not show reasonable ground in support of their delay in taking appropriate steps earlier. He has contended that unless & until the opposite party nos.1 to 5 are not able to offer sufficient reasons for their non-appearance, prayer for condonation of delay should not be granted. In the instant case, the opposite party nos.1 to 5 could not show sufficient reasons in support of non-taking steps earlier. So, the impugned order allowing the application under Section 5 of the Limitation Act cannot be supported and it should be set aside. On the other hand, Mr. Banerjee, learned Advocate appearing on behalf of the opposite party nos.1 to 5, submits that according to Order 41 Rule 4 of the Code of Civil Procedure if any of the plaintiffs are not willing to prefer an appeal against the order of dismissal of the suit, the other plaintiffs, i.e., the intending appellants were to make the rest plaintiffs as proforma respondents in the appeal. So in compliance of Order 41 Rule 4 of the C.P.C., the opposite party nos.1 to 5 have been made proforma respondents in the appeal. There is no illegality. In case of consideration for condonation of the delay, the Hon’ble Apex Court has observed in a catena of decisions that court should take liberal view and even in appropriate cases the court should allow the application for condonation of the delay, even if it is more than eight years. Thus, he supported the impugned judgment. He has prayed for dismissal of the application. Therefore, the following point has emerged for decision in this application: Whether the learned Additional District Judge, First Court, Purulia was justified in allowing the application under Section 5 of the Limitation Act thereby condoning the delay in filing the review application. Upon hearing the learned Advocate of both the sides and on perusal of the materials on record, I find that admittedly the applicant and others filed the Title Suit No.160 of 1986 before the learned Assistant District Judge, Purulia for recovery of khas possession of the suit property and that suit was dismissed. Thereafter, the applicant and his mother, now deceased, filed the Title Appeal No.12 of 1999 before the learned Additional District Judge, Purulia impleading the opposite party nos.1 to 5 herein as proforma respondents as they declined to join as appellants in the said appeal. That appeal bearing No.12 of 1999 was allowed in part and the respondent nos.1 and 2 were directed to pay compensation to the appellants in respect of .77 acres of land within a period of three months. While the applicant and others filed the Title Execution Case No.6 of 2003 for realisation of the compensation, the opposite party nos.1 to 5 filed the application for review along with the application for condonation of delay. That application under Section 5 was allowed by the impugned order assigning adequate reasons. Mr. Ghosh has referred to the following decisions in support of his contention:- 1. D. Gopinathan Pillai Vs. State of Kerala & anr. reported in 2007(2) SCC 322 . By referring this decision, Mr. Ghosh has submitted that when no explanation was given for condonation of 3320 days in filing the application, the prayer for condonation of the inordinate delay should not be allowed. D. Gopinathan Pillai Vs. State of Kerala & anr. reported in 2007(2) SCC 322 . By referring this decision, Mr. Ghosh has submitted that when no explanation was given for condonation of 3320 days in filing the application, the prayer for condonation of the inordinate delay should not be allowed. Before allowing such application, the court should see that the delay has been properly explained with satisfactory and reasonable grounds; otherwise the condonation of delay out of sympathy cannot be granted. 2. Ramlal & Ors. vs. Rewa Coalfields Ltd. reported in 1962 SC 361. By referring this decision, Mr. Ghosh has submitted that the proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5 of the Limitation Act. On the other hand, Mr. Banerjee has referred to the unreported decision in the case of ICICI Bank Vs. Garodia Vyapar Pratisthan Pvt. Ltd. Passed in the Civil Appeal No.2000 of 2006 and submitted that in appropriate cases the delay may be condoned by awarding adequate costs for compensation and this procedure is being followed in all courts. As regards the decision reported in 2007(2) SCC 322 , I find that was a matter relating to an application for setting aside an award as provided under Section 118 of the Limitation Act. There was delay of 3320 days in filing the application. The Arbitration Act, 1940 clearly lays down the provision for filing the application within a period of 30 days. That is a special statute declaring the period of limitation and so that must be followed. Therefore, the said decision, I am of the view, is not applicable in the instant case. As the other decision reported in 1962 SC 361 filed by the learned Advocate for the applicant, I am of the view that is a general condition with regard to dealing with an application under Section 5 of the Limitation Act which clearly lay down that sufficient cause has to be explained before allowing the application under Section 5 of the Limitation Act. The applicants of the review petition have clearly contended that they did not receive any summons of the Title Appeal No.12 of 1999 and they knew the fact of disposal of the appeal when they received summons of the execution case. The applicants of the review petition have clearly contended that they did not receive any summons of the Title Appeal No.12 of 1999 and they knew the fact of disposal of the appeal when they received summons of the execution case. The applicants of the review application have adduced evidence on the application under Section 5 of the Limitation Act stating that they did not receive summons of the appeal at all and that they were not aware of the judgment and decree of the Title Appeal No.12 of 1999. Against such specific statement, the applicant herein did not adduce any contrary evidence. During cross-examination of the P.W.1, postal acknowledgement cards and vakalatnama have been tendered and those have been marked exhibit nos. A, B and C. The P.W.1 has explained that the applicant herein has obtained their signatures thereon on the plea that the same were require for the purpose of the case. In fact, the opposite party nos.1 to 5 never attended the court but took information from the applicant herein. They could not get any information regarding the fact of the said appeal. Such statement of the P.W.1 inspires confidence because by the judgment and appeal, the opposite party nos.1 to 5 were deprived of their share of the compensation. Therefore, the statement of the P.W.1, I Hold, is trustworthy. So, I am of the view that the applicants of the review application have explained sufficient reasons for condonation of the delay. Then and there, they filed objection to the effect that they are also entitled to get compensation. The executing court was not ready to accept the objection filed by the opposite party nos.1 to 5 on the ground that the executing court could not go behind the decree passed by the appellate court. The fact remains that the applicants of the review application also inherited the suit property from their father and also from their mother after death. So, they have right to get compensation. So, in consideration of the merit of the objection as well as above facts and circumstances, I am of the view that the learned Additional District Judge was right in exercising his discretionary power to allow the application under Section 5 of the Limitation Act for the ends of justice. If this was not granted, there might be multiplicity of suits and proceedings. If this was not granted, there might be multiplicity of suits and proceedings. So, in order to solve the dispute once for all, amongst the parties to the review application, I am of the view that the learned Additional District Judge has rightly allowed the application for the ends of justice. I hold that the cause for delay has been explained by the opposite party nos.1 to 5. Therefore, I am of the view that the order impugned should not be interfered with. Accordingly, this application should be dismissed. So, the application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.