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2015 DIGILAW 393 (GAU)

Khairul Hoque v. Hasina Bewa

2015-03-31

A.K.GOSWAMI

body2015
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. H. Das, learned counsel for the appellants. None appears for the respondents though the names of the counsel are reflected in the cause-list. 2. The Second Appeal is directed against an order dated 29.08.2008 passed by the learned Civil Judge, Goalpara dismissing the appeal filed by the appellants as time-barred, consequent upon rejection of an application filed by the appellants for condonation of delay in preferring the appeal on the ground that the appellants had failed to show sufficient cause for condoning the delay as well as that there appears to be deliberate inaction and lack of bona fide on the part of the appellants in preferring the appeal. 3. The appeal was admitted to be heard by an order dated 20.04.2009 on the following substantial questions of law:- "(1) Whether the learned Appellate Court was right in holding that the explanation as averred in the petition under Section 5 of the Limitation Act, 1963 for condonation of delay of 15 days delay could neither be treated as adequate nor sufficient for condonation of delay and rejecting the said application and further dismissing the Title Appeal No. 13/2007 as time barred? (2) Whether, the learned Appellate Court was right in holding that the explanation as averred in the petition for condonation of delay it appeared that there was deliberate inaction and lack of bona fide on the part of the appellant in preferring the Appeal and as such appellants have failed to show "Sufficient Cause" for condoning the delay in preferring the Appeal and rejecting the said petition and dismissing the Title Appeal No. 13/2007?" 4. The present appellants were the defendants in the suit. 5. The case of the plaintiffs was that both the plaintiffs and the defendants were descendants of late Maishatulla. Maishatulla, along with his brother, jointly owned and possessed two plots of land and both the brothers, during their life time, mutually partitioned the said two plots of land. Late Maishatulla took the land located at Bousiapara and the brother took the land at Ambari and after their death, their legal representatives were in possession of the respective plots of land. Late Maishatulla took the land located at Bousiapara and the brother took the land at Ambari and after their death, their legal representatives were in possession of the respective plots of land. Maishatulla left behind 3 sons, namely, (1) Noor Mohammad, (2) Azizul Hoque and (3) Noor Hussain who used to live jointly in the Schedule A land at Bousiapara and they also purchased Schedule B land, each having 1/3rd share in the properties. Noor Hussain, one of the brothers, died leaving behind the plaintiff Nos. 2 to 8 as his heirs and Azizul Hoque died leaving behind the defendants as his heirs. Both the plaintiffs and defendants have their dwelling houses in Schedule A suit land and they were possessing the properties having common right, title and interest. The defendants started construction of a sanitary latrine in the Schedule A land for their use without the consent and permission of the plaintiffs. Plaintiffs requested the defendants to make partition of the suit property first and not to construct latrine and raise any permanent structure on the suit land. The same having not been acceded to, the suit was filed with the following prayers:- "(i) For a preliminary decree for partition of 1/3rd (one third) share of plaintiff No. 1, 1/3rd share of plaintiff No. 2 to 8 and 1/3rd share of defendants as per Muslim law of inheritance. (ii) For effecting partition in terms of the preliminary decree by commission to be appointed by the court. (iii) For final decree embodying the commission's report. (iv) For cost of the suit and any relief which this court may kind fit and proper." 6. A written statement was filed by the defendants contesting the averments in the plaint. 7. Though the pleaded version in the plaint is discussed in some detail to have an idea about the controversy, bearing in mind the scope of the present appeal, it is considered not necessary to deal with the stand of the defendants in the written statement in detail. 8. The suit was registered as Title Suit No. 48/1996 in the court of the Munsiff No. 1, Goalpara. 9. The learned trial court, by a judgment and order dated 30.09.2004, decreed the suit, as against which, the present appellants preferred an appeal before the court of the learned Civil Judge (Sr. Divn.), Goalpara, which was registered as Title Appeal No. 7/2005. 9. The learned trial court, by a judgment and order dated 30.09.2004, decreed the suit, as against which, the present appellants preferred an appeal before the court of the learned Civil Judge (Sr. Divn.), Goalpara, which was registered as Title Appeal No. 7/2005. In appeal, the impugned judgment and decree dated 30.09.2004 was set aside and quashed and the suit was remanded back to the learned trial court to decide the suit after giving opportunity to the parties for further hearing. Thereafter, by a judgment and order dated 28.03.2007, the suit was again decreed by the learned trial court. 10. Against the said judgment and decree dated 28.03.2007, an appeal was preferred by the defendants along with an application for condonation of delay, which, as has been noted herein before, was dismissed as time-barred, after rejection of the application for condonation of delay. 11. The learned lower appellate court recorded a finding that there was a delay of 15 days in preferring the appeal. 12. In the petition for condonation of delay filed on 05.09.2007, it was stated that the appellant No. 3 was staying at Tinsukia for his private job and he was the main person who was taking steps in the case. However, owing to serious ailment, he could not contact the counsel to file the appeal. He was medically declared fit to rejoin his work on 24.08.2007 and he joined in his service on that very day. But he was unable to avail leave immediately and that apart, there was intervening Assam Bandh because of which, he could not consult with his appointed advocate immediately and as a result thereof, there was delay in preferring the appeal. 13. It is to be noted that the impugned order was passed on 29.08.2008, almost about a year from the date of filing of the application. There was no objection filed to the said application. 14. Learned lower appellate court noted that no document was submitted along with the said application either with regard to his private employment or with regard to his ailment. Date of Assam Bandh was also not indicated. Accordingly, it was held that the appellants had failed to show sufficient cause for condoning the delay. 15. "Sufficient cause" has not been defined under Section 2 of the Limitation Act, 1963. It is difficult to lay down any hard and fast rule indicating what constitutes sufficient cause. Date of Assam Bandh was also not indicated. Accordingly, it was held that the appellants had failed to show sufficient cause for condoning the delay. 15. "Sufficient cause" has not been defined under Section 2 of the Limitation Act, 1963. It is difficult to lay down any hard and fast rule indicating what constitutes sufficient cause. Whether sufficient cause has been shown or not would depend on the facts and circumstances of the case. While deciding whether there is sufficient cause or not, a pragmatic approach has to be taken and when technical considerations and substantial justice are pitted against one and another, cause of substantial justice deserves to be preferred. 16. The rules of limitation are not meant to destroy or foreclose the rights of the parties. There are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. 17. There has been a paradigm shift with regard to how an application for condonation of delay is to be considered. In S. Ganesharaju (Dead) Through L.Rs. & Anr. Vs. Narasamma (Dead) Through L.Rs. & Ors., reported in (2013) 11 SCC 341 , the Apex Court has laid-down that expression "sufficient cause" shall have to be given a liberal construction so as to advance substantial justice. It was not observed that unless there are materials to show mala fide in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. It was further observed that the trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby, that technicalities have to yield to cause of substantial justice. The Apex Court also held that there is no presumption that delay in approaching the court is always deliberate. 18. If the application for condonation of delay is appreciated bearing in mind the principles as laid-down in S. Ganesharaju (Supra), it will appear that the appellant No. 3 was taking regular steps and he was employed in Tinsukia. He was also suffering from ailments and after being permitted to resume work by his attending doctor, he could not straightway take leave. These are the basic grounds on which the application for condonation of delay was filed. He was also suffering from ailments and after being permitted to resume work by his attending doctor, he could not straightway take leave. These are the basic grounds on which the application for condonation of delay was filed. As noticed earlier, even though the application was pending consideration for nearly a year, no objection was filed to the said application contesting the averments. True, the application was not accompanied by any medical certificate or by a certificate from his employer, but should the court reject the application only on account of the same, specially when the averments made are not disputed. Going by the averments made in the application, it does not seem that deliberately, for no good reason, appeal was not filed within time. There was also no inordinate delay in preferring the appeal. Viewed in that perspective, this court is of the considered opinion that grounds cited in the application provided sufficient cause to confer jurisdiction on the court to condone the delay. 19. Accordingly, in view of the above discussion, the substantial questions of law formulated in this appeal are answered in favour of the appellants. 20. Consequently, the appeal is allowed. The impugned judgment and decree dated 29.08.2008 is set aside and quashed. The case is remanded to the learned lower appellate court to consider and decide the same in accordance with law on merits. No costs. Registry will send down the records.