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2011 DIGILAW 885 (CAL)

S. S. Mandal v. STATE OF WEST BENGAL

2011-07-06

HARISH TANDAN

body2011
JUDGMENT HARISH TANDON, J. 1. THIS revisional application is directed against Order no. 51 dated 25.2.2009 passed by the learned Civil Judge, (Senior Division), Diamond Harbour in Misc. Case no. 7 of 2008 by which an application under Order 9 Rule 13 of the Code of Civil Procedure was allowed. 2. THE petitioner filed a money suit against the defendant/opposite party. THE defendant/opposite party entered appearance through the learned Additional Government Pleader and took time to file the written statement. Subsequently no step was taken for and on behalf of the defendant/opposite party resulting thereby that the said suit was decreed ex parte. From the record it appears that an application under section 47 of the Code was filed by the defendant/opposite party which was ultimately dismissed by the executing court. Thereafter the defendant/opposite party filed an application under Order 9 Rule 13 of the Code together with an application under section 5 of the Limitation Act seeking condonation of delay in preferring the said application which was registered as Misc. Case No. 7 of 2008. In the said application it is stated by the defendant/opposite party that the learned Additional Government Pleader handed over the draft copy of the written statement but the same was not in conformity with the instruction of the then officer. It is further stated that the said Additional Government Pleader did not thereafter take any steps as a result whereof the suit was decreed ex parte. An assistant engineer of Jainagar Education Department deposed as PW 1 in support of the above statement. 3. ACCORDING to the petitioner there is a gross negligence and laches on the part of the state department and the ground set forth in an application for condonation of delay is moonshine and is not tenable. 4. THE trial court upon considering the pleadings and the evidence found that sufficient cause is made out by the defendant/opposite party and thereafter upon condoning the delay, allowed an application for setting aside the ex parte decree. A point has been taken by the petitioner before this court that there is no explanation offered for delay in preferring the application for setting aside the ex parte decree and the court ought to have rejected the application for condonation of delay. A point has been taken by the petitioner before this court that there is no explanation offered for delay in preferring the application for setting aside the ex parte decree and the court ought to have rejected the application for condonation of delay. It is further contended that unexplained or casual explained delay should not be condoned by the court as has been held by the Supreme Court in case of Commissioner of Central Excise, Cochin Vs. Mathew Kurian, Pro. South India Products reported in (1999) 9 SCC 23 . It is further submitted that the court must record satisfaction for reasonableness as to explanation of delay and placed reliance upon a judgment of the apex court in case of P.K. Ramchandran Vs. State of Kerala reported in AIR 1999 SC 2276 . On the other hand, the defendant/opposite party submits that the trial court upon consideration of the sufficiency of the cause allowed an application for setting aside the ex parte decree upon condoning the delay in filing the same. It is further contended that the revisional court should not interfere against the discretionary order unless the same is perverse, illegal and not in consonance with the legal principles. Reliance is placed upon a judgment of the apex court delivered in case of N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7 SCC 123 and in case of Pavan Sachdeva and Anr. Vs. S.M.S. Pharmaceuticals Ltd. and Anr. reported in (2008) 10 SCC 803 . Having considered the respective submissions made at the bar, it is undisputed that an application for setting aside the ex parte decree under Order 9 Rule 13 of the Code was filed beyond the prescribed period of limitation. It has been specifically contended by the defendant/opposite party that the delay was occasioned due to the communication gap between the Additional Government Pleader and the other officials of the department because of the frequent retirement of he Secretary of Irrigation and Waterways department. It is further contended that the said learned Advocate never informed the state instrumentality regarding the non-filing of their written statement. Although the plaintiff/petitioner denied such statement but ultimately the trial court found the delay to be sufficient. Acceptance of the explanation being sufficient is the discretion of the court which should obviously be exercised in judicious manner and not capriciously. Although the plaintiff/petitioner denied such statement but ultimately the trial court found the delay to be sufficient. Acceptance of the explanation being sufficient is the discretion of the court which should obviously be exercised in judicious manner and not capriciously. It is held by the apex court in case of N. Balakrishnan (supra) that the approach of the court while dealing an application for condonation of delay must be liberal. 5. IT is no doubt true that the length of the delay is not the criteria for rejection of an application under section 5 of the Limitation Act but it is the sufficiency of the cause which should be considered by the court. Even an application filed after a long delay should be condoned if it is found by the court that the explanation offered is sufficient whereas an application for condonation of delay of the shorter period deserves dismissal in absence of any sufficient cause. There is no quarrel to the proposition of law enunciated by the apex court in case of Mathew Kurian (supra) and P.K. Ramachandran (supra) that the court must have recorded its satisfaction as to the sufficiency of the cause of delay. 6. THE trial court after considering the entire evidence have found that the defendant/opposite party was prevented by a sufficient cause by recording its satisfaction about the explanation given in the said application for condonation of delay. The revisional court exercising jurisdiction under Article 227 of the Constitution should exercise its power most sparingly and only in appropriate cases, in order to keep the subordinate courts or tribunals within its boundaries of law as has been held in case of Shamshad Ahmad and Ors. Vs. Tilak Raj Bajaj (dead) and Ors reported in (2008) 9 SCC 1 in the following words : "38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law." In view of the above proposition of law this court finds that the trial court after considering the evidence adduced by the parties, came to a positive finding that the defendant/opposite party was prevented by a sufficient cause and as such this court does not incline to interfere with the impugned order. Furthermore, I find no infirmity and illegality in the order impugned. The revisional application fails. However, there shall be no order as to costs. 7. THE defendant/opposite party is directed to file the written statement within 3 weeks from date. THE trial court shall make all efforts to dispose of the said suit within 6 months from the date of communication of this order. THE time frame for filing the written statement is peremptory. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.