Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 543 (GAU)

Sethi Coke Industries v. Jamshed Ali (Md. )

2012-05-03

C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. Heard Mr. D. Baruah, learned counsel, appearing for the petitioner. Also heard Mr. A. Barkakati, learned counsel for the respondent No. 1. By this application filed under Article 227 of the Constitution of India, the petitioner, who filed Title Appeal No. 8/2012 in the court of the learned Civil Judge No. 3 Kamrup, Guwahati has challenged the orders dated 23.8.2012, passed by the learned Civil Judge No. 3, Kamrup, Guwahati in Misc. (J) Case No. 3/2012 and the Title Appeal No. 8/2012. By the impugned orders, the learned Civil Judge dismissed the petition filed by the petitioner under Section 5 of the limitation Act, for condonation of delay of 326 days in preferring the said appeal against the judgment and decree dated 17.01.2011 passed in T.S. No. 28/2008. The learned Civil Judge by the impugned order also rejected the Memo of Appeal. 2. The respondent No. 1, as plaintiff, instituted the said Title suit, seeking decree for declaration of right, title and interest and confirmation of possession and also for cancellation of the sale deed executed by the defendant No. 1 in favour of the defendant No. 2 of the said title suit. The petitioner, as defendant No. 2 contested the said suit by filing written statement. Having heard the learned counsel for both the parties, the learned trial Judge, by the impugned judgment and decree, dated 17.01.2011, decreed the suit in favour of the plaintiff. The said decree was put to execution and the executing court issued notice to the judgment debtor. The petitioner as judgment debtor received the said notice on 12.10.2011. After receipt of the said notice, the petitioner applied for certified copy of the judgment and decree on 01.11.2011 and obtained the same on 14.11.2011. On receipt of the certified copy of the said judgment and decree, the petitioner engaged his counsel and prepared memo of appeal against the judgment and decree dated 17.01.2011 and filed the appeal with an application under Section 5 of the Limitation Act seeking condonation of delay of 326 days. 3. The plea of the petitioner was that his engaged counsel did not inform him about the decree passed in the suit and that the petitioner came to know about the decree only on 12.10.2011 i.e. the date on which he received notice from the executing court. 3. The plea of the petitioner was that his engaged counsel did not inform him about the decree passed in the suit and that the petitioner came to know about the decree only on 12.10.2011 i.e. the date on which he received notice from the executing court. Hence, the petitioner, as appellant, filed the appeal with a petition for condonation of delay. In the said petition, filed under Section 5 of the Limitation Act, the petitioner stated that, after receipt of the certified copy on 14.11.2011, he came to Guwahati to engage his counsel for filing appeal and handed over the relevant papers to the newly engaged counsel, who took some time to peruse the relevant documents for preparing the memo of appeal. 4. It is also pleaded that the petitioner's power of attorney holder, who looked after the cases of the petitioner, suffered from acute abdominal pain and joint pain with effect from 16.11.2011 to 30.12.2011 and as per doctor's advice, he had to take rest. According to the petitioner, after his recovery from the ailment, the power of attorney holder of the petitioner approached the engaged counsel and the memo of appeal was filed on 19.01.2012. 5. The prayer for condonation of delay was contested by the respondents/plaintiffs. The learned Civil Judge No. 3, Kamrup, Guwahati by the impugned order, dated 23.08.2012, passed in Misc. (J) Case No. 3/2012 (arising out of Title Appeal No. 8/2012), after hearing both the parties, dismissed the petition and rejected the prayer for condonation of delay. 6. Aggrieved by the said order of dismissal, the petitioner has come up with this revision petition on the grounds amongst others, that the learned Civil Judge No. 3, Kamrup, Guwahati committed error by failing to properly appreciate the grounds taken by the petitioner, in rejecting the prayer for condonation of delay. 7. Mr. Baruah, learned counsel for the petitioner has submitted that the engaged counsel of the petitioner did not inform the petitioner about the decree and that the petitioner came to know about the same only on 12.10.2011 i.e. after receipt of the notice from the executing court. On behalf of the petitioner, it is submitted that, after receipt of the said information, the petitioner diligently pursued the matter and took all necessary steps in preferring the appeal, by engaging counsel at Guwahati and that the appeal was filed on 10.01.2012. On behalf of the petitioner, it is submitted that, after receipt of the said information, the petitioner diligently pursued the matter and took all necessary steps in preferring the appeal, by engaging counsel at Guwahati and that the appeal was filed on 10.01.2012. It is submitted that the delay in preferring the appeal has been properly explained. 8. Mr. Baruah, taking this court through the petition, has submitted that from 02.10.2011 to 23.10.2011 the Civil Court was closed on account of Puja vacation and that 26.10.2011 and 27.10.2011 were holidays on account of Diwali. It is also submitted that, on 28.10.2011, the petitioner handed over the file to his engaged counsel and applied for the certified copy on 01.11.2011, which was obtained on 14.11.2011. It is further submitted that, on the reopening of the court, after the said vacation, the power of attorney holder of the petitioner approached the counsel at Guwahati, but due to his ailment the said attorney could not take steps till 30.12.2011. In the petition, it has also been stated that after obtaining the certified copy of the relevant documents, the memo of appeal was preferred and that the same was filed on 19.01.2012. 9. In view of above, Mr. Baruah has submitted that the petitioner, after coming to know about the passing of the decree aforesaid, was taking all necessary steps diligently and that there is no lapse or negligence on the part of the petitioner. It is also submitted that the dismissal of petition, seeking condonation of delay, has caused much prejudice and inconvenience to the petitioner, inasmuch as his right to prefer appeal, against the impugned judgment and decree, has been denied. 10. Refuting the said argument, advanced on behalf of the petitioner, Mr. Barkakoti, learned counsel for the respondent No. 1, has submitted that it is not at all believable that the petitioner, who was a party to the suit, had no information on knowledge about the decree, passed in the suit and that the petitioner was sleeping over the matter for about one year, without taking any steps for preferring appeal against the judgment and decree. It is also submitted that even after coming to know about the passing of the judgment and decree on 12.10.2011 the petitioner did not take any steps to prefer an appeal, immediately thereafter and as such there was sufficient negligence and fault on the part of the petitioner, for which he is entitled to get relief. 11. Supporting the impugned order, the learned counsel for the respondent No. 1 has submitted that the learned trial Judge has rightly observed that the petitioner failed to explain the delay satisfactorily and as such the impugned order does not warrant any interference by this court. In support of his contention, the learned counsel, for the respondent No. 1 has relied on two decisions rendered in the case of N. Balakrishnan v. M. Krishnamurthy, reported in (1998) 7 SCC 123 and in the case of Improvement Trust, Ludhiana v. Ujagar Singh & Ors., reported in (2010) 6 SCC 786 . 12. Having heard the learned counsel for the parties and carefully perusing the materials on record I find that the petitioner, who contested the plaintiffs' suit, categorically stated that the petitioner was not informed by his engaged counsel about the dismissal of the suit and as such he came to know about the decree only after receipt of the notice from the executing court. From the record as well as the statement, made in the revision petition, it appears that, after receipt of the information about the decree dated 17.01.2011, on 12.10.11, the petitioner took necessary steps for filing the appeal against the judgment and decree aforesaid. 13. The learned Trial Judge, while dismissing the appeal observed as follows: In the present case in hand, none of the ground shown by the appellant are found satisfactory and sufficient for condonation of the delay. Non-explanation of the delay for the period from admitted knowledge and applying c/copy is also fatal to petitioner/appellant. Failing (sic) temporary injunction file power of attorney is another ground which hits the root of the matter. As such, I am of the view that petition of the appellant have no merit for Condoning the Delay in filing the appeal as prayed for. As such the matter stands dismissed. Parties to bear their own costs. 14. Failing (sic) temporary injunction file power of attorney is another ground which hits the root of the matter. As such, I am of the view that petition of the appellant have no merit for Condoning the Delay in filing the appeal as prayed for. As such the matter stands dismissed. Parties to bear their own costs. 14. From the above, it appears that at the concluding part of the said order, the learned trail Judge held that the petitioner failed to explain the delay for the period with effect from the admitted date of knowledge and the date of applying for certified copy. The petitioner, as stated by him came to know about the decree on 12.10.2011. The learned counsel for the petitioner, referring to holiday's list, has submitted that, there was court vacation from 3rd to 23rd October, 2011 and that 26th and 27th October, were also holidays. 15. From the holiday list for the year, 2011 (Annexure-F to this petition), it is found that there was the long vacation of civil courts with effect from 3rd October to 23rd October, 2011 and 26th October and 27th October were holidays on account of Kalipuja and Diwali. 16. Therefore, it is found that during the period from 01.11.2011 to 23.11.2011 i.e. the date of receiving the certified copy there was vacation for the civil courts till 23.11. Hence, the observation made by the learned trial Judge that the petitioner failed to explain the delay satisfactorily for the said period is not correct. That a part, from the contention made in the petition, it is found that, after receipt of the certified copy of the order, on 14.11.2011, the petitioner took steps for preparing the memo of appeal and approached his counsel at Guwahati on 16.11.2011. It has been stated that from 16.11.2011 to 30.12.2011 the power of attorney holder of the petitioner was sick. A medical certificate has been submitted in support of his said plea. It is admitted fact that appeal was filed on 19.01.2012. 17. From the above, it appears that the petitioner has explained the delay in preferring the appeal aforesaid. It has been stated that from 16.11.2011 to 30.12.2011 the power of attorney holder of the petitioner was sick. A medical certificate has been submitted in support of his said plea. It is admitted fact that appeal was filed on 19.01.2012. 17. From the above, it appears that the petitioner has explained the delay in preferring the appeal aforesaid. From the date of the information i.e. 12.10.2011, in fact, there was delay of about two months in preferring the appeal and during the said period, the court was on long vacation with effect from 3rd to 23rd while 26th and 27th were holidays due to Kalipuja and Diwali. 18. In the case of Improvement Trust, Ludhiana v. Ujagar Singh (Supra) there was 258 days delay, in preferring the appeal. While allowing the said delay, the Supreme Court observed that: 'it is pertinent to point out that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on such technicalities". 19. In the case of N. Balakrishnan v. M. Krishnamurthy (supra), the Supreme Court, while allowing the delay observed as follows: 9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of the delay is no matter, acceptability of the explanation is the only criterion. Sometimes, delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such findings, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the case shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower Court. 20. From the above discussion and the principles held by the Supreme Court, there is no difficulty in understanding that a liberal approach should be taken in the matter of condonation of delay. The delay is certainly a technical matter. The dismissal of a case on appeal, on the ground of delay amounts to depriving the petitioner from seeking justice on merit in respect of a dispute involving the petitioner's right to enjoy the property concerned. 21. Admittedly, in the present case, the decree has been passed against the petitioner in the title suit filed for right, title and interest and recovery of khash possession in respect of the disputed property. If the prayer for condonation of delay is not allowed, the defendant/petitioner will be deprived from challenging the decree aforesaid and in that event, much inconvenience and prejudice would be caused to him. 22. In view of the above and considering the entire aspect of the matter, I am of the opinion that the petitioner has explained the delay, though not every day's delay. Therefore, the grounds cited in the petition are found to be acceptable. 23. In view of the explanation made by the petitioner, the learned trial Judge could have allowed the condonation. No doubt, in the event of allowing the prayer some inconvenience and harassment would be caused to the respondents. Such harassment and inconvenience can be compensated by awarding cost. In the light of the above discussion, I find sufficient merit, requiring interference with the impugned orders. Accordingly, this petition is allowed. The impugned order is set aside with a cost of Rs.5,000/- payable to the respondent No. 1/plaintiff, by the petitioner/defendant. Consequently, the order, rejecting the Memo of appeal is also set aside. The learned Civil Judge No. 3, Kamrup, Guwahati shall cause restoration of the appeal subject to payment of the cost aforesaid. The parties shall appear before the first appellant court on 27.05.2011. With the above direction, this revision petition is disposed of.