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2017 DIGILAW 287 (CAL)

Dipa Chakraborty v. Netai Banerjee

2017-03-15

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : This is an application for condonation of delay in filing the second appeal seeking to challenge the judgment and decree dated September 11, 2014 passed by the learned Additional District Judge, 9th Court, Alipore, South 24 Parganas in Title Appeal No. 118 of 2008 thereby, affirming the judgment and eviction decree dated February 25, 2008 passed by the learned Civil Judge (Senior Division), 7th Court, Alipore in Title Suit No. 151 of 1997. 2. It is the case of the appellants that it was their elder brother, Sukumar Chakraborty who filed Title Suit No. 151 of 1997 (hereinafter referred as “the said suit”) against the respondent claiming a declaration of his tenancy in respect of the suit premises, as also decrees for permanent injunction and mandatory injunction. The respondent contested the said suit and in the written statement he also raised a counter-claim claiming eviction of the plaintiff. During the pendency of the suit, the original plaintiff died and he was substituted by his mother, Reba Chakraborty. After framing of the issues in the suit the parties adduced their respective evidence. By judgment and decree dated February 25, 2008 the learned trial Judge dismissed the claim of the plaintiff in suit and allowed the counter-claim of the respondent. The substituted plaintiff, the mother of the petitioners carried the said decree dated February 25, 2008 in appeal, being Title Appeal No. 118 of 2008 before the learned 9th Additional District Judge at Alipore and the appeal was admitted. During the pendency of the said appeal the said Reba Chakraborty, the sole appellant died and she was substituted in the appeal by her husband, one son and the petitioners, her two daughters. The husband of the original appellant, that is, the father of the petitioner also died on January 27, 2012. Thereafter, by a judgment and decree dated September 11, 2014 the appellate Court below dismissed the said appeal and affirmed the judgment and decree for eviction passed by the learned Court below. It is alleged that on the advice of their learned advocate, the petitioners and their brother filed an application under Order XLVII Rule 1 of the Code of Civil Procedure, being Misc. Case No. 2 of 2015 before the learned appellate Court below for review of its judgment and the same was dismissed on April 20, 2015. In the meantime, their brother the appellant no. Case No. 2 of 2015 before the learned appellate Court below for review of its judgment and the same was dismissed on April 20, 2015. In the meantime, their brother the appellant no. 1(a) in Title Appeal No. 118 of 2008 died. According to the petitioners, on July 11, 2015 they contacted the present advocate who after perusing the judgment of the learned appellate Court below advised them to file second appeal challenge the same by filing second appeal before this Court and accordingly, they have filed the second appeal. The petitioners claim that they have all along been dealing with the case as per advice of the learned advocate representing them before the learned Courts below and there was no wilful latches or negligence of their part in filing the second appeal within the period of limitation. In these facts, as alleged by the petitioners, they are seeking for condonation of delay made in filing the second appeal. 3. However, the respondent landlord has contested the prayer of the petitioners for condonation of delay in preferring the second appeal. He filed his affidavit-in-opposition disclosing that the petitioners challenged the order of dismissal of the review application dated April 20, 2015 passed by the learned appellate Court below, by filing a revisional application, being C.O. 2906 of 2015 and by order dated February 24 of 2016 a learned Single Judge of this Court rejected the revisional application on merit. 4. Mr. Anit Kumar Rakshit, learned advocate appearing for the appellants petitioners submitted that the delay in preferring the second appeal is 113 days and it is well settled law that the period spent by an appellant in prosecuting review application can be excluded in computing the period of limitation. In support of such contention, he referred to the decision of the privy council in the case of Briz Indar Singh vs. Lala Kandhi Ram reported in AIR 1917 PC 156 where it was held that once the Court comes to the conclusion that a review application has been diligently and in a bona fide manner prosecuted, then the period spent in perusing the said remedy has to excluded from the limitation period prescribed for filing an appeal and if the appeal is filed within the limitation after excluding such period that would furnish sufficient cause for the purpose of condoning the delay under Section 5 of the Limitation Act. The learned advocate for the petitioners also referred to a decision of a learned Single Judge of the Delhi High Court in the case of M/s. Colgate-Palmolive Co. vs. Hindustan Rimmer and Ors. reported in AIR 1995 Del 95 where the said decision of the Privy Council in the case of Briz Indar Singh (supra) was followed. 5. However, Mr. Arindam Mukherjee, learned advocate appearing for the respondent strenuously contended that the petitioners are not entitled to obtain any order on their application for condonation of delay. He relied on an unreported judgment dated November 18, 2008 of a learned Single Judge of Punjab and Haryana High Court in CM No. 1368-C of 2007 and RSA No. 480 of 2007 in the case of Mahabir vs. Bhawani & Anr. He submitted that in their application for condonation of delay in preferring the second appeal, the petitioners have made out a case that on July 11, 2015 their present advocate for the first time advised them that instead of filing the review application the judgment and decree passed by the learned first appellate Court was required to be challenged by filing a second appeal before this Court and based on such advice the petitioners filed the second appeal, but from the order dated February 24, 2016 passed by a learned Single Judge of this Court in C.O. 2906 of 2015 it is clear that the petitioners through their present advocates filed the said revisional application challenging the order dated April 20, 2015 passed by the learned first appellate Court below rejecting the said review application. It was, therefore, urged that when in spite of filing the second appeal, the petitioners with the same set of advocates proceeded with revisional application challenging the order passed by the learned appellate Court below and suppressed the same from this Court in the application for condonation of delay, the conduct and the explanation of the petitioners lacks bonafide and on this ground alone the prayer of the petitioner should be rejected. 6. In his reply, the learned advocate for the petitioners did not make any submission to explain the conduct of the petitioners in filing the above revisional application, C.O. 2909 of 2015 and as to why the filing of the said revisional application was not mentioned in the application for condonation of delay, even by filing a supplementary affidavit. 7. 6. In his reply, the learned advocate for the petitioners did not make any submission to explain the conduct of the petitioners in filing the above revisional application, C.O. 2909 of 2015 and as to why the filing of the said revisional application was not mentioned in the application for condonation of delay, even by filing a supplementary affidavit. 7. I have considered the materials on record and the arguments advanced on behalf of the respective parties. 8. The law of limitation is a substantive law and has defined consequences on the right and obligation of a party to the suit. It is settled law that the decisive factor in an application for condonation of delay is not the length of delay, but sufficiency of a satisfactory explanation. The explanation for delay, to constitute “sufficient cause” for not making the application within the period of limitation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. Therefore, when the averments made by a party in an application seeking for condonation of delay in filing an appeal or application are not correct or the conduct of the applicant lacks bona fide, the Court cannot allow the prayer for condonation of delay to deprive the valuable right already accrued to the other party. In this connection, reference may be made to the decision of the Supreme Court in the case of Balwant Singh vs. Jagdish Singh reported in (2010) 8 SCC 685 . 9. The case made out by the petitioner in this application for condonation of delay in preferring the second appeal against the judgment and decree passed by the learned first appellate Court is that as per the advice of the learned advocate representing them before the learned appellate Court below, they filed the application for review of the judgment and decree dated September 11, 2014 passed by the learned appellate Court below and it was only on July 11, 2015 they were advised by the present learned advocate that instead of filing the review application ought to have filed the second appeal and thereafter, the second appeal was filed before this Court. However, the respondent has substantiated that through the same advocates representing them in the second appeal, the petitioners filed a revisional application, being C.O. 2906 of 2015 challenging the order dated April 20, 2015 passed by the learned appellate Court below dismissing the application for review of the judgment and decree dated September 1, 2014. It further appears that even after filing the second appeal before this Court, the petitioners proceeded with the said revisional application through the same set of advocates and it was only on February 25, 2016 the said revisional application, being C.O. 2906 of 2015 was dismissed by a learned Single Judge of this Court on merit. In these facts, I find that the explanations sought to be made out by the petitioners in this application for condonation of delay in preferring the appeal lacks bona fide. 10. In view of the above findings, the decisions cited on behalf of the petitioners in the cases of Briz Indar Singh (supra) and M/s. Colgate-Palmolive Co. (supra) have no bearing in the present case. 11. For all the reasons as aforesaid, the application for condonation of delay, being CAN 7074 of 2015 stands rejected. 12. However, there shall be no order as to costs. 13. Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.