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2019 DIGILAW 357 (GAU)

Golapuddin Sheikh v. Abdul Hamid

2019-03-18

PRASANTA KUMAR DEKA

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ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. P.K.R. Choudhury, the learned counsel for the petitioners and Mr. A.K. Hussain, the learned counsel for the respondents. 2. This is an application under Order XLI Rule 3 A of the CPC for condonation of delay of 706 days in filing the connected second appeal against the judgment dated 3.1.2016 and decree dated 03.02.2016 passed by the learned Civil Judge, Dhubri in Title Appeal No. 75/2011 dismissing the appeal of the present petitioners upholding the judgment and decree dated 27.06.2011 passed by the learned Munsiff, Bilasipara in Title Appeal No. 25/2009. 3. The present petitioners are the defendants in Title Suit No. 25/2009 which was decreed by the learned Munsiff, Bilasipara in favour of the plaintiff/respondent. Title Appeal No. 75/2011 was filed by the present petitioners which was also dismissed vide the judgment dated 03.01.2016. The said judgment passed in Title Appeal No. 75/2011 is put under challenge in the connected RSA No. 108/2018 but while filing the same there is delay of 706 days. 4. The defendants/petitioners wanted to project the grounds for delay as follows:- (a) The petitioners were unaware about the judgment dated 03.01.2016 passed in Title Appeal No. 75/2011 by the learned Civil Judge, Dhubri. The appellant No. 2 in Title Appeal No. 75/2011, Asraf Ali took steps in the first appeal but he died due to cancer on 24.11.2016 as such, he could not get the information regarding the dismissal of the said first appeal. (b) The wife of the present petitioner No. 1 who was the appellant No. 1 in Title Appeal No. 75/2011 is a Schizophrenic patient and the present petitioner No. 1 could not take steps in the first appeal as such, he was unaware of the said judgment passed in Title Appeal No. 75/2011. Stating the said two reasons, Mr. Choudhury submits that the court must be liberal in condoning the delay moreso, when there is merit in the connected second appeal. The grounds mentioned in the petition are sufficient to condone the delay of 706 days in filing the connected second appeal. In support of his submission, Mr. Choudhury relies Esha Bhattacharjee Vs. Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649 . 5. Mr. Hussain, on the other hand, vehemently objected to the submission of Mr. The grounds mentioned in the petition are sufficient to condone the delay of 706 days in filing the connected second appeal. In support of his submission, Mr. Choudhury relies Esha Bhattacharjee Vs. Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649 . 5. Mr. Hussain, on the other hand, vehemently objected to the submission of Mr. Choudhury submitting that the judgment in Title Appeal No. 75/2011 was passed on 03.02.2016 and on the other hand, the appellant No. 2 in Title Appeal No. 75/2011 died on 24.11.2016. The present petitioner No. 1 who was the appellant No. 1 in Title Appeal No. 75/2011 is fully aware of the judgment passed by the first appellate court. Moreover, in total there are five petitioners in this petition who were the appellants in the first appellate court. There is no explanation as to why leaving aside the appellant Nos. 1 and 2 in the first appellate court, the rest of the appellants could not take timely steps for filing the connected second appeal as such, the explanation for the delay submitted by Mr. Roychoudhury cannot be the basis for condonation of delay of 706 days. It is submitted further that the execution proceeding had already been initiated and only at the time of execution of the decree the petitioners have started and/or initiated to file the second appeal. He sought for dismissal of the petition and the connected second appeal. In order to buttress his submission, Mr. Hussain relies P.K. Ramachandran Vs. State of Kerala & Anr., reported in (1997) 7 SCC 556 . 6. I have considered the submission of the learned counsel. In (2013) 12 SCC 649 (supra) the Hon'ble Apex Court held that there is a distinction between inordinate delay and a delay of short duration of few days inasmuch as the former attracts the doctrine of prejudice whereas the latter may not attract the same and further the first one warrants strict approach and the second one calls for liberal approach. The conduct of the party relating to its inaction or negligence are relevant factors to be taken into consideration. The conduct of the party relating to its inaction or negligence are relevant factors to be taken into consideration. On the other hand, the Hon'ble Apex Court in (1997) 7 SCC 556 (supra) it was held that law of limitation may affect a particular party but it has to be applied with all its rigour when the statue so prescribes and the courts have no power to extend the period of limitation on equitable grounds. 7. Upon consideration of the submission of the learned counsel for the petitioners and keeping in view the aforesaid principles laid down by the Hon'ble Apex Court it is found that the petitioners failed to explain as to why the rest of the petitioners leaving aside the one whose explanation for non-taking of steps for filing the second appeal are mentioned, could not take steps to file the second appeal within time. 8. The merit of the second appeal cannot be considered at this stage inasmuch as the principle of equity will not come into play rather it is the causes which must be satisfactory and sufficient in order to allow this Court to extend the time period against the one prescribed by the statue. There is waiver on the part of the petitioners of their right to file the second appeal inasmuch as their right to file the same expired after 90 days starting from 3.1.2016 and after 706 days of delay the petitioners have filed this second appeal alongwith the condonation of delay petition. This itself, shows that there is gross negligence on the part of the petitioners in filing the connected second appeal. Even if, the cause of death of Asraf Ali, the appellant No. 2 in the first appellate court is taken into consideration but the cause shown in favour of the present petitioner No. 1 who was the appellant No. 1 in the first appellate court cannot be accepted. As such, this petition stands dismissed inasmuch I do not find any sufficient causes to condone the delay of 706 days.