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2018 DIGILAW 1011 (CAL)

State of West Bengal v. Bidyut Baran Manna

2018-12-21

MADHUMATI MITRA, SAMBUDDHA CHAKRABARTI

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JUDGMENT : MADHUMATI MITRA, J. 1. This is an application under Section 5 of the Limitation Act filed by the applicant/appellant praying for condonation of delay in filing the application for recalling order dated 3rd December, 2012 regarding dismissal of the appeal for non-compliance with the direction of this Court to prepare and file paper book. 2. The matter was heard on 06.12.2018. 3. The facts which are required to be considered for proper appreciation of the prayer of the applicant regarding condonation of delay in filing the application for restoration of the appeal which was dismissed on 3rd December, 2012 may be summarised as under: 4. The present Applicant-State of West Bengal preferred an appeal being no.386 of 2009 (F.A.T.No.1028 of 2003) challenging the judgment and award dated 25th January, 2002 passed by the learned Additional District Judge, 5th Court, Midnapore in L.A.Misc.Case No. 65 of 1994 before this Court. By the impugned order the learned Additional District Judge, 5th Court, Midnapore allowed the reference under Section 18 of the Act-I of the Land Acquisition Act 1894 and enhanced the award passed by L.A. Collector at the rate of Rs.2,00,000/- for 8 decimals of land. From the office note dated 30th June 2012 prepared and placed in connection with the said appeal being no.386 of 2009, it appeared that no paper book was submitted in spite of service of notices upon the learned Advocate of the appellant on 21st March 2012. On 5th July, 2012 a specific direction was issued by this Court regarding preparation of the paper book. It was mentioned in the said order that none appeared when the matter was called on and as such this Court directed for filing of paper books within two months. The office note dated 16.10.2012, further revealed that no paper book was furnished by the appellant in spite of specific direction dated 5th September, 2012 of this Court. As a result on 3rd December, 2012, the appeal was dismissed on the ground that despite direction of this Court no step was taken. 5. Now the Applicant-State, has prayed for restoration of the said appeal after setting aside the order of dismissal of the appeal dated 3rd December, 2012 upon condonation of delay of 1610 days. As a result on 3rd December, 2012, the appeal was dismissed on the ground that despite direction of this Court no step was taken. 5. Now the Applicant-State, has prayed for restoration of the said appeal after setting aside the order of dismissal of the appeal dated 3rd December, 2012 upon condonation of delay of 1610 days. In view of Article 122 of the Limitation Act the prayer for restoration of an appeal which is dismissed for default is to be made within 30 days from the date of the order of the dismissal. In the instant case, the prayer for restoration has been made on 3rd May, 2017. Admittedly the prayer for restoration of the appeal has been made after lapse of more than four years from the date of order of dismissal. In this connection the learned Advocate for the State has contended that the appeal was dismissed for non supply of paper books. According to his contention the supply of paper book by the appellant is nothing but a procedural requirement to assist the Court in rendering justice. Failure on the part of the appellant to comply the direction to prepare and supply the paper book should not have been taken so seriously to dismiss the appeal preferred by the appellant. The above mentioned submission of learned Advocate for the applicant is in consonance with a decision of Hon’ble Supreme Court in Kalipada Das @ Mohanta Versus Bimal Krishna Sen Gupta reported in AIR 1983 SC 876 . 6. Now we have to see whether the facts of the present case are eminently suitable for accepting the contention of the learned Advocate for the applicant which is in conformity with the decision of the Hon’ble Supreme Court reported in AIR 1983 SC 876 . 7. In the instant case, the prayer for restoration of the appeal has been made after more than four years from the date of dismissal of the appeal for non-supply of paper books as it reflected in the order dated 3rd December, 2012 of this Court. Admittedly the prayer for restoration of the appeal has not been made within the statutory period of limitation as contained in Article 122 of the Limitation Act. Admittedly the prayer for restoration of the appeal has not been made within the statutory period of limitation as contained in Article 122 of the Limitation Act. It is true that the Court has discretion to condone the delay if it is satisfied that there is sufficient cause which prevented the applicant in filing the application in time. Before exercising the discretion as contained in Section 5 of the Limitation Act, we have to see first how far the Applicant-State has succeeded in explaining the delay. 8. From the averments as made in paragraph 5 of the application for condonation of delay it appears that after the death of State Advocate Himanshu Bose, on the request of the Applicant-State on 03.07.2012 Advocate Animesh Ghosal was engaged from the office of Learned Legal Remembrancer to appear in the appeal for State, but the State did not get any information from the said learned Advocate and as such the official of the State visited the Office of learned Legal Remembrancer on 01.02.2013 and came to know that Advocate J.N.Manna was engaged to appear on behalf of the State in connection with the pending appeal. It has been specifically stated by the State that in spite of specific request the said Advocate J.N.Manna neither took any step in the appeal nor gave any information regarding pending appeal. Appellant-State again requested the learned Legal Remembrancer to change Advocate and on 26.04.2016 Advocate Anirudha Mohanta, was appointed to appear for the State in connection with the appeal and he filed requisition for inspection of the record of appeal. Thereafter on 10.04.2017 the State came to know about the dismissal of the appeal for non-supply of paper book. The Applicant-State has made prayer for restoration of appeal after setting aside the order of dismissal upon condonation of delay. From the averments made in the application under Section 5 of the Limitation Act it appear that the State has intended to say that due to inaction and negligence on the part of the Advocates who were engaged by the office of learned Legal Remembrancer the appeal was allowed to be dismissed due to non-supply of paper book. In the present case Applicant-State is trying to give blame for non-taking appropriate step not on a single Advocate, but on series of Advocates who were engaged in turn to appear for the State. 9. In the present case Applicant-State is trying to give blame for non-taking appropriate step not on a single Advocate, but on series of Advocates who were engaged in turn to appear for the State. 9. The explanation of delay as given by the State is not at all convincing one as from the contention of the State it appears that the officials of the State were all along aware about the pendency of the appeal as well as inaction on the part of Advocates. If they were diligent, then the application for condonation could have been filed by them much earlier or within time. It is true that some amount of latitude may be given to the Government at the time of considering the prayer for condonation of delay. But this does not mean that all types of inaction or negligence on the part of State are condoned. Any delay due to negligence, or gross inaction or lack of bona fide on the part of either party or his Counsel which causes hardship to the other party does not deserve to be condoned. In the present case reference was made in the year 1994. The matter has not yet been reached its finality. 10. The proof of a sufficient cause is a condition precedent for exercising discretionary jurisdiction vested in the Court under Section 5 of the Limitation Act. 11. The contentions of the application do not justify to hold that the State was due diligent and sincere to proceed with the appeal. Mere visits of the office of learned Legal Remembrancer and change of Advocates from time to time do not ipso facto inspires the confidence of the Court to exercise its discretion in favour of the applicant. We are of the view the Applicant-State has failed to satisfy the Court that the State was prevented by sufficient cause from filing the application for restoration of the appeal within the period of limitation. Though the reason for dismissal of the appeal in the case reported in AIR 1983 SC 876 and the present case is similar but in spite of that the factual situations of both the cases are different. In the case reported in AIR 1983 SC 876 the appellant moved before the Hon’ble Supreme Court by way of preferring an appeal challenging the validity of the order of dismissal. In the case reported in AIR 1983 SC 876 the appellant moved before the Hon’ble Supreme Court by way of preferring an appeal challenging the validity of the order of dismissal. On the other hand, in the instant case the Appellant-Applicant has approached for restoration of the appeal after setting aside the order of dismissal upon condonation of delay of four years. That means, Court has to consider and concentrate first whether the delay in preferring the application has been sufficiently satisfied or not. Thereafter the question of reason for dismissal of the appeal comes. Here the applicant has totally failed to explain the delay. The decision as reported in AIR 1983 SC 876 has no manner of application in the present case. 12. Considering all aspects, we are of the opinion that there is no merit in the present application under Section 5 of the Limitation Act. It is accordingly dismissed but without no order as to cost. Re: C.A.N.4441 of 2017 13. This is an application for restoration of appeal being F.A.386 of 2009 after setting aside the order of dismissal. C.A.N.4442 was filed under Section 5 of the Limitation Act to condone the delay in filing the C.A.N. 4441. 14. C.A.N.4442 has been dismissed and such the question of entertaining this C.A.N. does not arise. I agree. : Dr.Sambuddha Chakrabarti, J.