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2016 DIGILAW 171 (CAL)

KRISHNA CHANDRA MONDAL v. SAZIRUDDIN SK.

2016-02-15

ASHA ARORA

body2016
JUDGMENT : 1. This revisional application at the instance of the plaintiffs/petitioners has been directed against an order dated 8th January, 2016 passed by the Learned Civil Judge (Senior Division), Jangipur, Murshidabad in Misc. Case No. 9 of 2011 arising out of Partition Suit No. 1 of 2008. By the aforesaid order the learned Trial Court allowed an application under section 5 of the Limitation Act filed by the defendants/applicants (opposite parties herein) and condoned the delay in filing the Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed in Partition Suit No. 1 of 2008. 2. Learned advocate for the petitioners/plaintiffs strenuously argued that the prescribed period for filing an application under Order 9 Rule 13 CPC as per Article 123 of the Limitation Act is 30 days from the date of the decree or where the summons was not duly served, when the applicant/defendant had knowledge of the decree. The attention of this Court has been invited to the fact that the preliminary decree in the partition suit was passed on 8th September, 2008 after due service of summons upon the defendants and the application for final decree was filed on 20th May, 2009 while the Misc. Case under Order 9 Rule 13 was filed on 31st March, 2011 along with an application under section 5 of the Limitation Act. It has been contended on behalf of the petitioners that the delay of 954 days in filing the Misc. Case has not been satisfactorily explained. Learned advocate for the petitioners sought to impress upon this Court that the delay was deliberate with mala fide intention to frustrate the exparte decree. The ground made out by the applicants/defendants for condonation of the delay is that the plaintiffs/petitioners had assured them that the dispute would be amicably settled. Such assurance resulted in the delay in filing the Misc. Case. Learned counsel for the petitioners pointed out that the aforesaid application which was filed on behalf of the plaintiffs seeking time for amicable settlement of the matter was rejected by the Trial Court. So the explanation of delay was far from satisfactory. Such assurance resulted in the delay in filing the Misc. Case. Learned counsel for the petitioners pointed out that the aforesaid application which was filed on behalf of the plaintiffs seeking time for amicable settlement of the matter was rejected by the Trial Court. So the explanation of delay was far from satisfactory. To fortify his submissions, learned counsel for the petitioners placed reliance upon the decisions reported in (2008) 1 Supreme Court Cases 358 (Mahabir Singh vs. Subhash and others), (2010) 8 Supreme Court Cases 685 (Balwant Singh (Dead) vs. Jagdish Singh and others), (2013) 12 Supreme Court Cases 649 (Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others), (2015) 1 Supreme Court Cases 680 (H. Dohil Constructions Company Private Limited vs. Nahar Exports Limited and another) and 2015 (4) CHN (CAL) 38 (Sandha Paul vs. Reba Mondal). 3. Repudiating the submissions on behalf of the petitioners, learned counsel appearing for the opposite parties/defendants countered that the explanation for the delay given by the applicants/defendants was found satisfactory to the Trial Court so there is no reason to interfere with the said finding in exercise of the revisional jurisdiction of this Court. In support of such submission, learned counsel for the opposite parties/defendants referred to the decision reported in (1998) 7 Supreme Court Cases 123 (N. Balakrishnan vs. M. Krishnamurthy). 4. In the decision reported in (2010)8 Supreme Court Cases 685 (supra) the Apex Court held that in the matter of condonation of delay there is no straitjacket formula uniformly applicable to all cases without reference to the peculiar facts and circumstances of a given case. Evidently the decisions referred on behalf of the petitioners are clearly distinguishable on facts from the case before us where the explanation for the delay set up by the applicants/defendants was found satisfactory by the Trial Court in the exercise of its discretion. Liberal construction of the expression "sufficient cause" is intended to advance substantial justice. In the circumstances of the case the discretion exercised by the Trial Court does not appear to be perverse or irrational. 5. Consequently, no interference is warranted with the impugned order. 6. The learned Trial Court shall expedite the hearing of Misc. Liberal construction of the expression "sufficient cause" is intended to advance substantial justice. In the circumstances of the case the discretion exercised by the Trial Court does not appear to be perverse or irrational. 5. Consequently, no interference is warranted with the impugned order. 6. The learned Trial Court shall expedite the hearing of Misc. Case No. 9 of 2011 and dispose of the same in accordance with law preferably within six months from the date of communication of this order without granting unnecessary adjournment to either of the parties. 7. Revisional application is thus disposed of. 8. Interim order, if any, stands vacated. 9. No order as to costs. 10. Urgent Photostat certified copy of this order, if applied for, shall be given to the parties upon compliance of requisite formalities.