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2011 DIGILAW 953 (GAU)

Dudu Miah and Ors. v. Utpal Deb and Ors.

2011-12-02

C.R.SARMA

body2011
1. This appeal, under section 100 of the Code of Civil Procedure, 1908 ('CPC'), is directed against the judgment and order, dated 16.7.2010, passed by the learned District Judge, West Tripura, Agartala, in T.A. No. 08/2010, whereby and whereunder, the learned District Judge rejected the petition for condonation of delay, preferred by the appellants-defendants. 2. The respondents, as plaintiffs, instituted a title suit, seeking right, title, interest and recovery of possession in respect of the suit land, against the defendants. The defendants, as appellants, contested the claim of the plaintiffs by filing written statement. But, as the written statement was not filed within time, the learned trial Judge refused to accept the same and accordingly the suit proceeded ex parte. Consequently, an ex parte judgment and decree was passed in favour of the plaintiffs. The defendants, as petitioners, thereafter, filed a petition for setting aside the ex parte judgment and decree and the said prayer was rejected. Dissatisfied with the ex parte judgment and decree, dated 6.3.2009, passed in T.S. No. 103/2007 aforesaid, the defendants filed an application, under order DC, rule 13 of CPC along with a petition under Section 5 of the Limitation Act, i.e., Misc. (Condonation) No. 19/2009. The trial court rejected the condonation petition and dismissed the said miscellaneous case as well as the petition for restoration, i.e., Misc. (Restoration) No.20/2009 for want of steps. The darned counsel, appearing for the appellant-defendants again filed a petition for restoration of the said case [Misc. (Restoration) No.20/2009] along with a petition for condonation of delay of 190 days, on the ground that the appellants-defendants did not receive information regarding dismissal of the restoration petition and that due to illness he could not take steps in time. The said petition for restoration was registered as Misc. (Restoration) Case No.48/2009 and the condonation petition was registered as Misc. (Condonation) No.47/2009. On 21.1.2010, on which date, hearing of the miscellaneous case regarding condonation of delay was fixed, the learned counsel for the appellant-defendants filed a Hazira but, on being called, the learned counsel was not found present in the court. Therefore, the learned trial Judge rejected the condonation petition, i.e., Misc. (Condonation) No.47/2009 and the restoration petition, i.e., Misc. (Restoration) No.48/2009, vide order, dated 21.1.2010. Therefore, the learned trial Judge rejected the condonation petition, i.e., Misc. (Condonation) No.47/2009 and the restoration petition, i.e., Misc. (Restoration) No.48/2009, vide order, dated 21.1.2010. Aggrieved by the ex parte judgment and decree passed in T.S. No. 103/2007 and also failing to get the ex parte decree vacated, the appellant-defendants preferred an appeal, being Title Appeal No.08/2010 before the learned District Judge, West Tripura, Agartala, along with a petition for condonation of delay of 360 days in preferring the appeal, on the grounds that due to absence of the learned counsel and failure of the clerk of the counsel to take necessary steps, the delay was caused in preferring the appeal. According to the appellant-defendants, they are poor cultivators and labourers and they have been possessing the suit land since 1990 through their predecessor-in-interest on the basis of purchase from the owner of the land. By the impugned judgment and order, the learned District Judge, rejected the petition for condonation of delay and, thus, refused to admit the appeal, being Title Appeal No.08/2010, in which the said condonation petition was filed. Challenging the said order of rejection of the condonation petition, filed in respect of the first appeal, i.e., Title Appeal No.08/2010, the appellants have come up with this second appeal, on the ground that, in view of the facts and circumstances of this case, the first appellate court committed error by failing to appreciate that there was no negligence or lapses on the part of the appellants, who were required to rely on the engaged counsel and his clerk, in approaching the first appellate court. It is the contention of the appellant-defendants that, the learned District Judge committed error by rejecting the petition for condonation of delay, holding that there was negligence, on the part of the appellants-defendants. According to the appellant-defendants, the appeal could not be filed, in time, due to failure on the part of the Advocate's Clerk, in taking steps in time. In the petition, filed under section 5 of the Limitation Act (i.e., Misc. Condonation No.08/2010), in Title Appeal No.08/2010, the appellant-defendants stated that, they being poor persons, on the advise of the learned counsel, filed a petition for restoration of the suit by setting aside the ex parte decree but, the said petition was rejected. In the petition, filed under section 5 of the Limitation Act (i.e., Misc. Condonation No.08/2010), in Title Appeal No.08/2010, the appellant-defendants stated that, they being poor persons, on the advise of the learned counsel, filed a petition for restoration of the suit by setting aside the ex parte decree but, the said petition was rejected. According to the defendant-appellants, the learned counsel, considering the poverty of the appellants, decided to file a petition under order DC, rule 13 of CPC but, for the absence of the counsel for the appellant-defendants, the said petition was rejected. It has also been contended, by the petitioners, that the delay was caused due to the lapses on the part of the counsel of the appellants-defendants and as such the appellants-defendants, being illiterate villagers, can't be forced to suffer. 3. I have heard Mr. D.R. Choudhury, learned counsel, appearing for the appellants and Mr. A.M. Lodh, learned senior counsel, assisted by Mr. M.K. Roy, learned counsel, appearing for the respondents. 4. As the appellants-defendants, in the instant appeal, have challenged the order, by which the prayer for condonation of delay in preferring the first appeal was rejected by the learned District Judge, as agreed to by the learned counsel for both the parties and for the sake of convenience, this matter has been taken up for final disposal, at the stage of admission hearing. 5. Mr. D.R. Choudhury, learned counsel, appearing for the appellants, has submitted that the appellants, being poor and illiterate villagers, had no other alternative but to depend on the advise of their engaged counsel as well as the clerk of the counsel and that failure of the engaged counsel to file the appeal, can't be sufficient cause to deprive the defendants-appellants from getting justice. It is submitted that, there is nothing on record to show that there was any negligence or intentional laches on the part of the appellant-defendants and as such the learned appellate court, while considering the petition, under section 5 of the Limitation Act, should have taken a liberal view in rendering substantial justice instead of taking resort to technical grounds. It is submitted that, there is nothing on record to show that there was any negligence or intentional laches on the part of the appellant-defendants and as such the learned appellate court, while considering the petition, under section 5 of the Limitation Act, should have taken a liberal view in rendering substantial justice instead of taking resort to technical grounds. It is also submitted that the appellant-defendants have been residing in the suit land with their huts, thereon, for the last thirty years and as such refusal to entertain the appeal, preferred against the ex parte judgment and decree passed against them, on the technical ground of delay, would deprive them from knocking the door of justice and to substantiate their claim with regard to property, which they have been enjoying for the last several years as their own properties. The learned counsel, has strenuously urged that, for ends of justice, an opportunity should have been given to the appellant-defendants to substantiate their claim and as such the delay ought to have been condoned by taking a liberal view, for ensuring substantial justice. It is also submitted that, no prejudice would be caused to the other side if the appeal, preferred against an ex parte judgment and decree, is heard and decided on merit as per law. In support o'f his contentions, the learned counsel, has relied on the following decisions : (1) Gulam Mohmad Nurminya Kazi v. Prakash Devendra Shantilal, AIR 1996 Guj. 94 ; (2) Rajammal v. State of Tamil Nadu andAnr., AIR 1999 SC 684 ; (3) Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors., AIR 1987 SC 1353 ; (4) Devendra Swamy v. Karnataka State Road Transport Corpn., AIR 2002 SC 2545 ; (5) AtorAli and Ors. v. Abdul Majid, (1983) 1 GLR 264; (6) State ofTripura v. Pradip Ghosh and Ors., (2002) 1 GLR 285. 6. Controverting the said arguments, advanced by the learned counsel, appearing for the petitioners, Mr. A.M. Lodh, learned senior counsel, appearing for the respondents, has submitted that the appellant-defendants, who preferred the appeal along with the condonation petition, failed to explain the delay satisfactorily and as such the learned trial judge committed no error by rejecting the petition for condonation of delay. A.M. Lodh, learned senior counsel, appearing for the respondents, has submitted that the appellant-defendants, who preferred the appeal along with the condonation petition, failed to explain the delay satisfactorily and as such the learned trial judge committed no error by rejecting the petition for condonation of delay. It is also submitted that, the appellant-defendants, initially, instead of preferring appeal against the ex parte judgment and decree, filed a petition under order IX, rule 13, CPC for setting aside the ex parte judgment and decree with a petition for condonation of delay and by failing to get the ex parte decree set aside/vacated, has come up with this appeal, under section 96, CPC after sufficient delay and, as such, a right has been vested with the respondents and the same can't be taken away at this stage, that too, without explaining the delay properly. It is also submitted that, there is sufficient negligence on the part of the appellant-defendants in not preferring the appeal in time and the appellant-defendants, by failing to properly explain the delay in preferring the appeal, lost their right to prefer an appeal against the impugned judgment and order. In support of his contentions, the learned senior counsel, has relied on the following decisions : (1) P.K. Ramachandran v. State of Kerala and Anr., AIR 1998 SC 2276 ; (2) Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors., (2002) 3 SCC195; 7. Having heard the learned counsel for both the parties and considering the materials on record, I find that, there is no dispute in the claim of the appellant-defendants that they are illiterate and poor villagers. Therefore, there is no difficulty in understanding that the appellant-defendants were not aware of the nicieties of the legal procedure, not to speak of the technicalities. Admittedly, such litigants have no alternative but to rely on the guidance and advise of the professional experts, i.e., the engaged counsel and their clerks. 8. Therefore, there is no difficulty in understanding that the appellant-defendants were not aware of the nicieties of the legal procedure, not to speak of the technicalities. Admittedly, such litigants have no alternative but to rely on the guidance and advise of the professional experts, i.e., the engaged counsel and their clerks. 8. In the case at hand, the appellants-defendants have clearly stated that, they relied on the advise of their counsel and the counsel of the appellants-defendants initially decided to file an application under order IX, rule 13, CPC and the same being rejected, the concerned counsel and his clerk, filed a petition for obtaining the certified copy of the said dismissal order, dated 6.3.2009, only on 11.2.2010 and, as such, the delay of 361 days was caused in preferring the appeal. They have also stated, in their petition supported by an affidavit, that the delay was caused due to latches and negligence on the part of the counsel of the appellant-defendants. In view of above, it appears that the sole ground taken by the appellant-defendants is that, they being illiterate and poor villagers, relied on the counsel and the clerk of the counsel and that the delay was caused due to negligence/latches on the part of the counsel and his clerk. 9. There is no dispute that the appellants-defendants preferred the suit seeking right, title, interest and recovery of possession and as such the question of dispossession of the appellant-defendants from the suit land, wherein they have been residing with their houses thereon, is involved in this case. By the ex parte judgment and decree aforesaid, the appellant-defendants' right to continue with the possession in respect of the suit land has been negated without hearing them. Therefore, in order to protect their right, they sought to challenge the said decision by preferring an appeal under section 96, CPC. Admittedly, right to appeal is a statutory right conferred on the parties concerned, unless otherwise debarred, by law. 10. Mr. Choudhury, learned counsel, appearing for the appellant-defendants, referring to the provisions of order XLIII, rule l(d) CPC and relying on the decisions held in the case of Gulam Mohmad Nurminya Kazi (supra), has submitted that, an appeal lies against an order, rejecting a petition filed under order DC, rule 13, CPC. The said decision, rendered in the above referred case, supports the contention of the learned counsel for the appellant-defendants. 11. The said decision, rendered in the above referred case, supports the contention of the learned counsel for the appellant-defendants. 11. A careful reading of order XLIII, rule l(d), CPC, makes it clear that, an appeal does not lie against an order allowing a petition filed under order IX, rule 13, CPC for setting aside an ex parte decree. Therefore, there is no bar in preferring an appeal against an order, rejecting an application under order IX, rule 13, CPC. 12. In the case of Rajarnmal (supra), a case involving delay of 5 days came up before the Madras High Court. The said matter related to detention under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act,14/1982). Despite receiving the file in time, the concerned Minister, who was on tour, passed necessary order after the statutory period of five days. A habeas corpus petition being filed against the detention order, before the Madras High Court, on the ground of delay, amongst others, in considering the representation, submitted by the detenue, the Division Bench of the said High Court, dismissed the petition. Against the said order of dismissal, an appeal was preferred before the Supreme Court by a special leave, challenging the judgment of the High Court. The Supreme Court reversed the decision of the High Court, observing that merely stating that the Minister was on tour and hence he could not pass order was not a justifiable explanation. The said matter involved the liberty of a citizen, guaranteed under article 21 of the Constitution of India and it stood established that the relevant file was placed before the Minister in time, but no order was passed, thereby causing the delay. The Supreme Court further observed that, there should not be supine indifference, slackness or callous attitude in considering the representation and any unexplained delay in disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. It was noticed that, if the delay was caused on account of any indifference or lapse of considering the representation, such delay will adversely affect further detention of the petitioner. It was noticed that, if the delay was caused on account of any indifference or lapse of considering the representation, such delay will adversely affect further detention of the petitioner. The Supreme Court further observed that the authority is not pre-empted from explaining any delay which would have occasioned in the disposal of the representation and the court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. In view of above, it is the duty of the court to consider as to whether there are permissible reasons or unavoidable causes leading to the delay. If the delay is found to be reasonable, or unavoidable, there is no bar in granting the relief sought for. 13. Section 5 of the Limitation Act provides that, an application may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. While considering a petition under section 5 of the Limitation Act, the court is required to be satisfied as to whether sufficient cause has been shown. 14. In the case of Mst. Katiji (supra), the Supreme Court, while discussing the words "sufficient cause" and laying down the principles, under which a petition for condonation can be admitted, observed as follows: "The Legislature has conferred the power to condone delay by enacting section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." In the above referred case, the Supreme Court further observed that the courts are required to take a justice oriented approach in considering a petition for condonation of delay. 15. In the case of Devendra Swamy (supra), the Labour Court, on being approached, directed the employer to pay the appellant-workman all his backwages along with consequential benefits and costs of the proceedings. The court also directed the appellant to continue in service, to be re-inducted in the same post where he was working and where from he was removed with denial of two increments with cumulative effect. The employer, i.e., the Karnataka State Road Transport Corporation filed a writ petition, challenging the said order, which was dismissed by a learned Single Judge. The Corporation preferred a writ appeal, which was filed after the expiry of the period of limitation. The Division Bench condoned the delay in filing the appeal. The employer, i.e., the Karnataka State Road Transport Corporation filed a writ petition, challenging the said order, which was dismissed by a learned Single Judge. The Corporation preferred a writ appeal, which was filed after the expiry of the period of limitation. The Division Bench condoned the delay in filing the appeal. On merit, the Division Bench found that the order of the Labour Court and the learned Single Judge were not justified and, accordingly, the appeal was allowed setting aside the order of the learned Single Judge and the award of the Labour Court. The employee approached the Supreme Court. The Supreme Court, while dismissing the appeal, observed : "5. Having heard the learned counsel for the parties, we are satisfied that in the facts and circumstances of this case, a Division Bench did run err in condoning the delay in filing the appeal. The lawyer engaged by the respondent-Corporation was holding the papers and did not inform the Corporation of the decision in the writ appeal. The Corporation, having felt convinced of the default on the part of the lawyer, removed him from the panel of the Corporation and engaged another counsel through whom the writ appeal was filed. Sufficient cause for condoning the delay in filing the appeal was made out. Discretion to condone delay under section 5 of Limitation Act has been judiciously exercised by High Court, placing reasons on record and is not open to interference by this court." 16. In the above referred case, it was pleaded, on behalf of the Corporation, that the delay was caused not due to lapses or negligence on the part of the Corporation in as much as the lawyer engaged by the Corporation was holding the papers and he did not inform the Corporation of the decision in the writ appeal. The Supreme Court held that sufficient cause for condoning the delay in filing the appeal was made out and that the discretion to condone the delay under section 5 of the Limitation Act has been judiciously exercised by the High Court. 17. The Supreme Court held that sufficient cause for condoning the delay in filing the appeal was made out and that the discretion to condone the delay under section 5 of the Limitation Act has been judiciously exercised by the High Court. 17. In our present case also, the appellant-defendants have pleaded that, they being poor illiterate villagers, had to rely on the advise of their engaged counsel as well as the clerk of the counsel and that as the concerned clerk of the counsel had obtained the certified copy after the statutory period the delay aforesaid was caused. 18. As observed by this court in the case of Ator All (supra), the delay, if not imputable to any negligence or inaction or want of bona fide belief of a party, should be condoned depending on the facts and circumstances of the case and the expression "sufficient cause" applying in section 6 is to be liberally construed so as to advance substantial justice. Considering the facts and circumstances of this case and the status of the petitioners, there is nothing to show that there was either negligence on their part or want of bona fide belief. 19. In the case of Pradip Ghosh (supra), a learned Single Judge of this court, has observed that the delay is to be properly and sufficiently explained and that if the delay is sufficiently explained, the same deserves to be condoned in the interest of justice. The court further observed that there must not be any negligence or latches on the part of the parties, seeking condonation of delay. 20. In the case of P.K. Ramachandran (supra), the Supreme Court has reserved that, the court while condoning the delay, is required to record its decision with regard to explanation for the delay. As observed by the Supreme Court, the pre-requisite to condone the delay is the explanation, which should be reasonable and satisfactory. In the above referred case, there was delay of 565 days in preferring the appeal. The explanation put forward for such delay was that the Advocate General's office, at the relevant time, was fed up with so many arbitration matters equally important to that case. Therefore, the explanation given for the said delay was that the appeal could not be preferred due to pendency of other equally important matters. The explanation put forward for such delay was that the Advocate General's office, at the relevant time, was fed up with so many arbitration matters equally important to that case. Therefore, the explanation given for the said delay was that the appeal could not be preferred due to pendency of other equally important matters. The High Court allowed the condonation with the following order : "This is an application to condone the delay of 565 days in filing an appeal. The petition is seriously opposed by the respondent. But taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition. The petition stands allowed." The said order being challenged before the Supreme Court, by filing an appeal, the Supreme Court observed : "We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days." As revealed from the above, it is clear that the Supreme Court declined to condone the delay on the ground that the cause of delay was not reasonably and satisfactorily explained. In our present case, the appellants-defendants have clearly stated that they, being poor illiterate villagers, had to rely on the advise of the counsel and the clerk of the counsel and that the appeal could not be filed, in time, due to failure on the part of the counsel's clerk to obtain the certified copy of the order. Therefore, the decision rendered, in the facts and circumstances of the above referred case, is not applicable to the case at hand. 21. In the case of Ram Nath Sao alias Ram Nath Sahu (supra), the Supreme Court observed : "12. Thus, it becomes plain that the expression "sufficient cause" within the meaning of section 5 of the Act or order 22, rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. 13. In view of the foregoing discussions, we are clearly of the opinion that on the facts of the present case, the Division Bench of the High Court was not justified in upholding the order passed by the learned Single Judge whereby prayers for condonation of delay and setting aside abatement were refused and accordingly the delay in filing the petition for setting aside abatement is condoned, abatement is set aside and prayer for substitution is granted." 22. In the above referred case, the Supreme Court, while explaining the expression "sufficient cause" within the meaning of section 5 of the Limitation Act, observed that a liberal construction of the term "sufficient cause" should be made so as to advance substantial justice in cases where no negligence or inaction or want of bona fides is imputable to a party. In the above referred case, the Supreme Court, while explaining the expression "sufficient cause" within the meaning of section 5 of the Limitation Act, observed that a liberal construction of the term "sufficient cause" should be made so as to advance substantial justice in cases where no negligence or inaction or want of bona fides is imputable to a party. The Supreme Court also made it clear that there cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps and that the tendency of finding fault with the cause shown and rejecting the petition by a slipshod order in overjubilation of disposal drive cannot be approved. The Supreme Court further observed that acceptance of explanation, furnished, should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. The Supreme Court also observed that, however, by taking a pedantic and hyper-technical view of the matter, the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. 23. There is no dispute that the question regarding right to enjoy the suit property under the possession of the appellant-defendants, is involved in this case. If the appellant-defendants are not given opportunity to challenge the correctness of the impugned ex parte judgment and decree, against which they have preferred the first appeal, on the technical ground of delay, which is not imputable to their negligence or inaction or lack of bona fides, enormous loss and irreparable injury would be caused to them. On the other hand, no such prejudice would be caused to the other side. The loss and injury, if at all caused to the other side, would be in terms of time required for the litigation and financial involvement thereof. This can be duly compensated by awarding considerable compensation. 24. On the other hand, no such prejudice would be caused to the other side. The loss and injury, if at all caused to the other side, would be in terms of time required for the litigation and financial involvement thereof. This can be duly compensated by awarding considerable compensation. 24. Applying the said principles, adopted in the above referred case, there is no difficulty in holding that there was no lapse or negligence on the part of the appellant-defendants because they had no other alternative, but to rely on their engaged counsel and the clerk of the counsel. As the question of appellants' ejectment from the suit property, which they had been possessed by raising their houses thereon, is involved in the case at hand, it can't be believed that the appellant-defendants would have been negligent (intentionally) in taking necessary steps at the appropriate,time, and thereby invite their ejectment from the suit property. Therefore, their plea that they were relying on their counsel and the clerk of the counsel, who failed to take necessary steps at appropriate time, is believeable. So, it can't be concluded that there was negligence on the part of the appellant-defendants. In view of above, the cause shown by the defendant-appellants in respect of the said delay appears to be reasonable and sufficient. 25. In view of above discussions, considering the facts and circumstances of this case and keeping in mind that the appellant-defendants were required to rely on their counsel and the clerk of the counsel, I am of the opinion that, a liberal view should be taken and the petitioners should be allowed to seek justice. Therefore, I am inclined to hold that the delay in preferring the appeal by the appellant-defendants was unavoidable and as such the explanation, put forward by them, is found to be reasonable and sufficient. In my considered opinion, the learned Judge, in the first appellate court, ought to have considered entire aspect of the matter and condone the delay in preferring the appeal and, thus, give an opportunity to the appellant to seek justice. 26. In the result, the appeal is allowed with cost of Rs. 1,000 only, payable by the appellant-defendants to the respondents. 26. In the result, the appeal is allowed with cost of Rs. 1,000 only, payable by the appellant-defendants to the respondents. The impugned judgment and order, dated 16,07.2010, passed by the learned District Judge, West Tripura, Agartala, in T.A. No. 08/2010 is set aside and the matter is remitted back learned District Judge, west Tripura, Agartala, for deciding the on merit in accordance with law.