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2018 DIGILAW 296 (GAU)

Pramod Kumar Sharma v. Kajori Deb

2018-02-16

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. A.K. Purkayastha, learned counsel appearing for the petitioners. Also heard Mr. B.D. Konwar, learned counsel appearing for the respondents. 2. By this application under Article 227 of the Constitution of India read with Section 115 CPC, the petitioners have questioned the legitimacy of the order dated 12.10.2015, passed by the learned Civil Judge No. 2, Kamrup (Metro), Guwahati, in Misc. (J) Case No. 329 of 2015, allowing the Petition No. 4877/15 dated 28.08.2015 filed by the respondents for condonation of delay in preferring the Petition No. 4629/15, which is an application under Order DC Rule 13 read with Section 151 CPC, for setting aside the ex parte decree dated 27.02.2015, passed in Title Suit No. 160/2014. 3. The said Title Suit was filed by the petitioners for specific performance of contract and permanent injunction. 4. It is pleaded in the suit that the predecessor-in-interest of the defendants agreed to sell a plot of land measuring 11 Lecha, but prior to execution of the sale deed, he died on 21.07.2013. It is not in dispute that the summons of the suit was served on the defendants on 05.08.2014. There are three defendants in the suit. It is to be noted that on 01.09.2014, the second daughter of the defendant No. 1, who was aged about 10 years, expired. The suit was not contested as a result of which the ex parte decree was passed on 27.02.2015. On 19.08.2015, an application under Order IX Rule 13 CPC read with Section 151 CPC was filed for setting aside the aforesaid ex parte decree dated 27.2.2015 as also the order dated 28.8.2014, whereby the suit was directed to be proceeded ex parte against the defendants. On 28.08.2015, an application under Section 5 of the Limitation Act, 1963 was filed by the defendants for condoning the delay of "57 days". The petitioners filed an objection to the said condonation application on 8.9.2015. By the impugned order dated 12.10.2015, the learned trial court condoned the delay holding that the defendants had shown sufficient cause. The plaintiffs, as petitioners, have filed the instant revision petition challenging the aforesaid order dated 12.10.2015. 5. Mr. The petitioners filed an objection to the said condonation application on 8.9.2015. By the impugned order dated 12.10.2015, the learned trial court condoned the delay holding that the defendants had shown sufficient cause. The plaintiffs, as petitioners, have filed the instant revision petition challenging the aforesaid order dated 12.10.2015. 5. Mr. Purukayastha has submitted that the learned trial court did not apply its judicial mind while disposing the application for condonation of delay as, admittedly, on the face of it, when the defendants had proclaimed to have received the summons on 5.8.2014 and the application having been filed on 28.8.2015, there could not have been delay of only 57 days and this aspect of the matter was glossed over by the learned trial court. Secondly, it is contended that, as a logical corollary, there is no explanation for the period beyond 57 days and, if that be so, the delay could not have been condoned. Mr. Purukayastha further submits that the grounds cited for explaining sufficient cause is concocted in view of the fact that the plaintiffs having filed a suit earlier against the defendants, being Title Suit No. 125/2014, it is unbelievable that on the assurance of the plaintiffs, the defendants had not taken any steps in the instant suit. He has also submitted that an application, being Petition No. 2656/15, was filed by the defendants on 08.6.2015, in Title Execution Case No. 5/15 contending that summons had not been received, but, subsequently, had made volte-face in their application under Section 5 of the Limitation Act as well as in the application filed under Order IX Rule 13 CPC read with Section 151 CPC admitting receipt of summons. Mr. Purukayastha contends that the impugned order is liable to be interfered with. 6. Per contra, Mr. Konwar has submitted that the husband of defendant No. 1 died one year prior to filing of the suit, at the young age of 50 years. He has submitted that in Title Suit 125/2014, which was filed on 21.4.2014, written statement was filed on behalf of defendant No. 1 by M/s. Prospective Consultancy Pvt. Ltd., to whom the property involved in the said suit had been sold on 5.2.2014 by the defendant No. 1 and, therefore, defendant No. 1 has no surviving interest in that suit property. He has further submitted that there is long-standing relationship between the plaintiffs and the defendants, the plaintiff being tenants of the defendants for more than 25 years. He submits that though the defendants had received summons on 5.8.2014, tragedy struck the defendant No. 1 once again as the cruel hands of destiny had snatched away the life of her younger daughter on 1.9.2014. As a result, defendant No. 1 was utterly devastated and, at this juncture, the plaintiff No. 1 had indicated to her that she need not worry about the summons received. Her mental state at that time and the assurance of the plaintiffs not to worry resulted in the defendant No. 1 not taking the requisite steps in the suit and when the notice of execution was received on 22.05.2015, she took immediate steps and engaged a counsel to take appropriate steps, who, however, did not take the requisite steps. Drawing attention of the court to the Petition No. 2656/15, dated 08.06.2015, he submits that the defendant No. 1 did not file the aforesaid petition but the petition was filed by the counsel without any verification, that too, by incorporating incorrect averments that the defendants had not received any summons. It is further contended by Mr. Konwar that the number of days of delay mentioned in the application will not be of material effect and what is required to be considered is the explanation given for the delay from the date of receipt of the summons, which, according to him, has been adequately explained by the defendants. 7. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 8. On a specific query of the court, Mr. Purukayastha has not denied that the plaintiffs and the defendants have landlord-tenant relationship for more than 25 years. The death of the daughter of defendant No. 1 is also not denied by him. 9. The husband of defendant No. 1 had expired on 21.07.2013 and, in about another one year one month's time, she had also lost her younger daughter, i.e., defendant No. 3, on 01.09.2014. It will not be difficult to visualize the state of mind of a lady who was in distress having suffered two tragic losses within such a short span of time. It will not be difficult to visualize the state of mind of a lady who was in distress having suffered two tragic losses within such a short span of time. In such circumstance, how one would have reacted in a given situation is difficult to hazard a guess. In the objection filed to the application under Section 5 of the Limitation Act, it is not the contention that after the death of the daughter of defendant No. 1, the plaintiffs had never met the defendant No. 1, but what is averred is that the plaintiff No. 1 had not given any kind of assurance regarding the suit. 10. Considering the situation which the defendant No. 1 found herself to be in, it will not be unreasonable to opine that there could have been some kind of confusion in her mind as the defendants would not have gained anything by not contesting the suit. Even though the number of days as indicated in the application for condonation of delay is, ex-facie, wrong, the same will not tilt the scales in favour of the petitioners inasmuch as when the starting point of limitation is taken from the date of receipt of summons, then also the explanations are put forward beginning from the date of death of the daughter of defendant No. 1, i.e., 01.09.2014, coupled with the averments that assurance had been given by the plaintiffs lulling her to believe that she need not worry about the case, as she was only a formal party. 11. "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 another, cause of substantial justice deserves to be preferred. It is also to be borne in mind that the rules of limitation are not meant to destroy or foreclose the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It is also to be borne in mind that the rules of limitation are not meant to destroy or foreclose the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The expression "Sufficient Cause" has to be given a liberal construction so as to advance substantial justice and unless there are materials to show mala fide in not approaching the court within the period of limitation, delay should be condoned. 12. Considering the matter in its entirety, I am of the opinion that no interference is called for with the order under challenge. 13. Resultantly, the revision petition is dismissed.