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2012 DIGILAW 517 (CAL)

Sabitri Kaur v. Saroj Kr. Mondal

2012-06-14

SOUMEN SEN

body2012
JUDGMENT Affidavit of service filed in Court today be kept with the record. 2. The application filed under Order IX Rule 13 of the C. P. C. was rejected by the learned trial Judge on the ground that the petitioner has failed to substantiate sufficient cause for recalling of the said decree. The learned Appellate Court also concurred with the said finding. It appears that a suit for eviction was filed in the year 1986 on the ground of reasonable requirement. 3. The original defendant initially appeared in the suit and filed an application under Section 17(2) of the West Bengal Premises Tenancy Act and deposited rent up to the month of July, 1990. The appellant was a driver and it is claimed that he used to drive lorry and heavy vehicle to different parts of the country and used to work for transport companies. Due to such occupation he mostly used to remain out of Calcutta and return once or twice in a year. The suit was fixed for ex parte hearing on June 4, 1991. It is stated that the written statement was prepared but the same could not be submitted since the original defendant met with an accident in Madras in the last week of May, 1991 and he arrived in Calcutta only on August 25, 1991. He met his counsel on August 26, 2991 when for the first time he came to learn that an ex parte decree was passed on June 4, 1991. He filed an application for setting aside of such ex parte decree on the ground that his nonappearance on the date fixed was unintentional and the situation was beyond his control. The application under Order IX Rule 13 of the C. P. C. was considered on evidence. Learned trial Judge gave several opportunities to the son and the other persons who appeared in support of the said application to produce relevant documents including medical prescriptions, extract of police record, F. I. R. and other related papers but none of the said witnesses could produce any such evidence. In view of such lack of evidence, the said application was dismissed. 4. In view of the fact that such evidence of the son and other persons were hear-say evidence, their evidence was disbelieved inasmuch as such evidence was not corroborated by any other cogent material evidence. 5. In view of such lack of evidence, the said application was dismissed. 4. In view of the fact that such evidence of the son and other persons were hear-say evidence, their evidence was disbelieved inasmuch as such evidence was not corroborated by any other cogent material evidence. 5. The learned Appellate Court after going through the evidence also found that the appellant had failed to produce any document or evidence of the alleged accident and the medical treatment of the deceased. The driving licence, the letter of appointment and the other medical reports were not produced in spite of giving repeated opportunities. It is submitted on behalf of the petitioners that the learned Court should not be technical in considering the application for recalling of an ex parte decree. The said application was filed along with an application under Section 5 of the Limitation Act. It is submitted that the approach of the Court in such matters should be liberal and not technical. It is further submitted that the delay in making the application and the reason for non-appearance on the date fixed for hearing were sufficiently explained and in the event, the son was not given opportunity to contest the said proceeding for eviction, the same would result in serious miscarriage of justice. The suit for eviction on the ground of reasonable requirement filed in 1986 culminated in an ex parte decree could not be executed in view of the pendency of the said application and the appeal. 6. The plaintiff-decree holder in spite of getting such decree could not execute the same because of the pendency of this proceeding. 7. Learned counsel appearing for the petitioners submits that in view of the law laid down in 2006(1) CHN 380 in the case of W.B.S.E.B. v. Gilloram Gouri Shankar and in (2008(1) WBLR(Cal) 103 in the case of Aloke Kumar Dey v. Ashoke Kumar Dey, the Court should permit the petitioners to contest the said eviction proceeding. 8. The exercise of jurisdiction under such a situation is on the basis of recording a satisfaction that there is “sufficient cause” for allowing the party to contest the proceeding. The expression “sufficient cause” has not been defined by the Statute. It has been left to the discretion of the Court. The discretion cannot be exercised capriciously and irrationally. 8. The exercise of jurisdiction under such a situation is on the basis of recording a satisfaction that there is “sufficient cause” for allowing the party to contest the proceeding. The expression “sufficient cause” has not been defined by the Statute. It has been left to the discretion of the Court. The discretion cannot be exercised capriciously and irrationally. There should be some materials on record which could assist the Court to arrive at a finding that there is sufficient cause for allowing an application. Such power cannot be exercised mechanically. In Oriental Aroma Chemical Industries Ltd. v. Gujrat Industrial Development corporation and Anr. Reported in 2010(2) ICC – 595 the Hon’ble Supreme Court observed that the law and limitation is founded on public policy. “The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression “sufficient cause” employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate – Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107 , N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106 . Katiji (1987) 2 SCC 107 , N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106 . In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by the private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142 , State of Haryana v. Chandra Mani (1996) 3 SCC 132 , State of U.P. v. Harish Chandra (1996) 9 SCC 309 , State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635 , State of Nagaland v. Lipok Ao (2005) 3 SCC 752 , and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582 .” 9. In the decision reported in AIR 2011 SC 1199 , in the case of Lanka Venkateswarlu v. State of A.P. & Ors. the Hon’ble Supreme Court considered the earlier decisions and sounded a note of caution against adopting a liberal approach in paragraphs 19 & 26 which are reproduced hereinbelow : – “19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the cause of Collector, land Acquisition, Anantnag & Ors. V. Katiji & Ors. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. V. Katiji & Ors. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that partly Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.” 10. In the instant case, the original defendant did not come to depose. The Court is required to be prima facie satisfied that the reason for nonappearance of the defendant was due to his occupational engagement at Madras and that he met with an accident for which he was unable to attend the Court. Normally in such a situation an application is filed for extension of time to file written statement. The Court usually gives opportunities before fixing a suit for peremptory hearing and there is no departure from that procedure in the instant case. Even then, if for reasons beyond the control of a litigant, the said litigant cannot appear on the date fixed, the Court can allow such application on being shown sufficient cause for non-appearance and permit the defendant to contest the proceeding. 11. In view of the aforesaid and having regard to the fact that in spite of repeated opportunities being given to the petitioners to produce evidence, the said defendants have failed to produce the relevant record and documents, the Court was left with no other option but to dismiss the said petition. The learned appellate Court on proper appreciation of fact and law affirmed the order passed by the learned trial Court. 12. Accordingly, this Court finds no infirmity with the order passed by the learned appellate Court and thus, the revisional application fails. 13. The learned appellate Court on proper appreciation of fact and law affirmed the order passed by the learned trial Court. 12. Accordingly, this Court finds no infirmity with the order passed by the learned appellate Court and thus, the revisional application fails. 13. However, there shall be no order as to costs. Urgent photostat certified copy, if applied for, be given to the parties upon compliance of necessary formalities.