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2019 DIGILAW 923 (CAL)

Samir Kumar Dutta v. Kalipada Pal

2019-11-08

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. CAN 11594 of 2011 is an application filed by the defendants/appellants/applicants praying for amendment of the memorandum of the application for review by incorporating the names of the heirs and legal representatives of the original plaintiff/respondent, since deceased as plaintiff/respondent/opposite parties No.1(a) to 1(d) upon condonation of delay. 2. CAN 11595 of 2011 is an application filed by the defendants/appellants/applications seeking condonation of delay of 225 days for presentation of the memorandum of review. 3. Since both the above mentioned applications are closely connected upon each other, I propose to dispose of the said applications by a composite order as hereunder:- 4. The applicants were defendants of Title Suit No.70 of 1976 filed by one Kalipada Pal, since deceased praying for declaration that the suit properties mentioned in schedule Kha of the plaint are Benami property of his father and deed of gift executed by one Lilabati in favour of the defendants was void. The said suit was dismissed on contest by the learned trial judge. The original plaintfff/respondent since deceased preferred an appeal before the lower appellate court which was registered as Title Appeal No.281 of 1981. The said appeal, however, was allowed on contest. As a result, the judgment and decree of dismissal passed by the learned trial court in Title Suit No.70 of 1976 was set aside and the suit was decreed. The defendants/appellants preferred an appeal before this Court being SA No.170 of 1994. This Court by a judgment dated 9th August, 2008 and decree dated 9th September, 2008, dismissed the appeal on contest. Against the said judgment and decree passed by a Coordinate Bench of this Court, the defendants/appellants preferred review which is registered as RVW 100 of 2009. 5. It is stated by the petitioners that the memorandum of review was filed against Kalipada Pal, since deceased on 22nd May, 2009. The petitioners had no knowledge that the said Kalipada Pal died on 28th January, 2009 leaving behind some legal heirs and representatives whose names are stated in paragraph 10 of the application. Therefore, by filing the instant application, the petitioners have prayed for amendment of cause title of the memorandum of review by incorporating the names of the legal heirs and representatives. 6. Therefore, by filing the instant application, the petitioners have prayed for amendment of cause title of the memorandum of review by incorporating the names of the legal heirs and representatives. 6. In the application for condonation of delay which is registered as CAN 11595 of 2011, it is stated by the petitioners that SA No.170 of 1994 was dismissed by a Coordinate Bench of this Court on 9th September, 2008. On the date of delivery of judgment, the petitioners missed the list and only on 21st January, 2009, they came to know about dismissal of the appeal by a Coordinate Bench of this Court. Immediately, the petitioners applied for certified copy of the said judgment and decree passed in SA No.170 of 1994 and it was made available on 29th April, 2009. The learned Advocate for the petitioners advised them to file a review application in the month of May 2009. Accordingly, the application for review was filed on 22nd May, 2009. In this process there was delay of 225 days in filing the review application. It was also contended by the petitioners that the review application was filed inadvertently against the sole plaintiff/respondent Kalipada Pal, since deceased. The defendants have no knowledge about death of the said Kalipada Pal. 7. Thus, it is contended by the petitioners that delay of 225 days in filing the review application was caused due to the reasons, first, the petitioners did not know the date of delivery of the judgment in SA No.170 of 1994. They came to know about delivery of such judgment only in the month of January, 2009 and obtained certified copy of the same on 29th April, 2009. Secondly, the petitioners could not take immediate step to file review against the judgment passed in S.A. 170 of 1994 due to financial hardship and lack of proper advice by their learned Advocate. 8. Under such circumstances, petitioners have prayed for condonation of delay in filing the application for review. 9. Respondent Nos.1 (a), 1(b) and 1(c) being the legal heirs and representatives of deceased respondent Kalipada Pal contested the aforesaid application under Section 5 of the Limitation Act by filing an affidavit-in-opposition wherein they denied the statement made by the petitioners showing cause for delay in filing the application for review and condonation thereof. 9. Respondent Nos.1 (a), 1(b) and 1(c) being the legal heirs and representatives of deceased respondent Kalipada Pal contested the aforesaid application under Section 5 of the Limitation Act by filing an affidavit-in-opposition wherein they denied the statement made by the petitioners showing cause for delay in filing the application for review and condonation thereof. The contesting respondents specifically contended that the review application was filed beyond the period of limitation only to harass the respondents with a mala fide motive. The petitioners purposefully filed the review application against Kalipada Pal, since deceased though they, being the next door neighbours, had personal knowledge about the death of the said Kalipada Pal. Mala fide of the petitioners is ex facie clear from their conduct in as much as the applications under consideration were affirmed on 16th December, 2011 and the respondents/opposite parties received the copies of the said applications only on 2nd July, 2019. 10. The petitioners, on the other hand has filed an affidavit-in-reply denying the allegations made out against them by the respondents/opposite parties in their affidavit-in-opposition and reiterating their stand as stated in the said applications. 11. Mr. Aniruddha Chatterejee, learned Advocate for the petitioners submits that the dispute between the parties relates to complicated question of title. The suit was initially dismissed. But it was reversed in appeal. The judgment and decree passed by the First Appellate Court was affirmed by this Court in SA 170 of 1994. The plaintiff/respondent, since deceased claimed title over the suit property by virtue of a will executed by the predecessor-in-interest of the parties, namely, one Bato Krishna Pal, since deceased. The widow of Bato Krishna and his other legal heirs contested the probate proceeding instituted by Kalipada Pal, since deceased. Lilabati, the widow of Bato Krishna claimed the suit property as her self acquired property and she transferred the said property by executing two deeds of gift in favour of the defendants/appellants/petitioners. The last testament and will of Bato Krishna was probated. Under the aforesaid background, title of the parties over the suit property is in dispute. 12. It is submitted by Mr. Chatterjee that in the matter of condonation of delay, the court should adopt a justice oriented approach. In a bid to render justice so that just cause is not defeated, a pragmatic view should be taken considering the sufficient cause for delay. 12. It is submitted by Mr. Chatterjee that in the matter of condonation of delay, the court should adopt a justice oriented approach. In a bid to render justice so that just cause is not defeated, a pragmatic view should be taken considering the sufficient cause for delay. In the instant case, the petitioners have stated that they had no knowledge about the date of delivery of judgment in SA 170 of 1994 by a Coordinate Bench of this Court. It is not disputed that argument was heard in July, 2008 and judgment was delivered in September, 2008 by a Coordinate Bench of this Court. The petitioners have stated on oath that the learned Counsel for the petitioners missed the list on the date of delivery of judgment and did not know when it was delivered. Subsequently in the month of January, 2009, the petitioners came to know that judgment in SA 170 of 1994 was delivered. Immediately he applied for certified copy and it was available in the last week of April, 2009. The learned Advocate for the petitioners advised them to file a review application in May, 2009 and accordingly it was filed on 22nd May, 2009. Under such factual background, Mr. Chatterjee submits that condonation of delay is the discretion of the Court and such discretion has to be exercised to advance substantial justice. If the application for condonation of delay is refused, the defendants/petitioners will be non-suited. So, Court must adopt a pragmatic approach. An application under Section 5 of the Limitation Act cannot be rejected on the basis of pedantic approach and hyper technical reason. In this case, there was delay of 225 days in preferring the review. The petitioners have explained the delay which prevented them from preferring the application for review of the judgment and decree passed in SA 170 of 1994. There is no reason to disbelieve the petitioner. The opposite parties failed to make out a specific case showing reasons as to why the petitioners cause should not be accepted as sufficient cause within the meaning of Section 5 of the Limitation Act. 13. With regard to an application for amendment of the cause title of the memorandum of review by incorporating the names of the legal heirs of deceased respondent, Mr. 13. With regard to an application for amendment of the cause title of the memorandum of review by incorporating the names of the legal heirs of deceased respondent, Mr. Chatterjee refers to a decision of this Court in State of West Bengal vs. Manisha Maity reported in AIR 1965 Cal 459 . He particularly refers to paragraph 11 of the aforesaid judgment passed by the Division Bench of this Court which is quoted below :- "11. The remedy of an appellant, who has unknowingly filed an appeal against a dead person, is to file an application for presentation of the appeal against the heirs of the dead person afresh. If the time for filing the appeal was in the meantime over, he is to present an application, under Section 5 of the Limitation Act, therein explaining the delay in presenting the appeal afresh against the heirs of the dead person. If he can make out sufficient cause for making the belated prayer, the Court may allow the same, amend the cause title of the memorandum of appeal by incorporation of the names of the heirs and legal representatives of the dead person and treat the appeal as a freshly presented appeal against the heirs." 14. Mr. Haradhan Banerjee, learned Senior Counsel on behalf of the opposite parties, on the other hand, submits that the application for review was filed against Kalipada Pal who died on 28th January, 2009. The petitioners are the nephews of Kalipada Pal and next door neighbours. It is absolutely a false statement that the petitioners did not know the date of death of the original respondent Kalipada Pal. Be that as it may, the Hon'ble Supreme Court in Gurcharan Singh vs. Surjit Singh and Anr. reported in (2012) 13 SCC 530 held that where a party has been impleaded as respondent in an appeal, but such respondent was dead before the filing of appeal, the remedy of the appellant is not by filing an application for substitution of legal representative of such respondent, but to file an application for an amendment of the appeal memorandum and in a case where such application for amendment is filed beyond the limitation prescribed for filing the appeal, the appellant must also filed an application under Section 5 of the Limitation Act for condonation of delay in filing the application for amendment. 15. 15. Thus, it is contended by the respondents/opposite parties that the petitioners are under obligation to explain delay up to the date of filing of the application for amendment of memorandum of review incorporating the names of the legal heirs of deceased respondent. The petitioners filed application for review on 22nd May, 2009. On the contrary, the applications for amendment of memorandum of review along with an application under Section 5 of the Limitation Act were filed on 20th December, 2011. The petitioners have not explained the delay during the said period between 22nd May, 2009 and 20th December, 2011. In view of such circumstances both the applications are liable to be rejected. 16. Mr. Banerjee further submits that false plea taken by a party seeking condonation of delay cannot be entertained by the court and it is to be held that the delay was not sufficiently explained. In support of his contention he refers to a decision of the Hon'ble Suupreme Court Binod Bihari Singh vs. Union of India reported in (1993) 1 SCC 572 . On this point, he also refers to the following decisions of the Hon'ble Supreme Court:- 1. Ashis Kumar Hazra vs. Rubi Park co-operative Housing Society Ltd. & Ors. reported in 1998 WBLR (SC) 15. 2. H. Dohil Constructions Company Private Limited vs. Nahar Exports Limited and Another reported in (2015) 1 SCC 680 . 17. It is on record that the application for review was filed on 22nd May, 2009. At the time of presentation of the review there was a report of the stamp reporter regarding delay of 225 days. It is found from the said memorandum of review that it was filed on behalf of the applicants through one Shankarlal Bidasaria. Subsequently on 20th December, 2011 both the applications under disposal were filed by the petitioners through Srijib Chakraborty, Advocate. 18. In the application for amendment of the cause title of the memorandum of review by incorporating the names of the legal heirs and representatives of the deceased respondents the petitioners explained the delay in filing the said application (CAN 11594 of 2011) in paragraphs 12, 13, 14, 16 and 17. In paragraph 17 of the said application it is specifically stated by the petitioners that the application for amendment of the memorandum of review was not filed within time due to lack of instruction. In paragraph 17 of the said application it is specifically stated by the petitioners that the application for amendment of the memorandum of review was not filed within time due to lack of instruction. In Shalini Poddar vs. V.C.K Share and Stock Broking Services Limited reported in AIR 2007 NOC 677 (Cal), this court allowed an application for condonation of delay on the factual narration that delay in filing appeal took place because of advice/action of the erstwhile advocate who was appointed for taking steps. The appellants were bona fide in their approach and had reposed faith in the erstwhile advocate. Subsequently, the petitioners filed the application for condonation of delay in preferring the appeal on the advice of the subsequent advocate appointed by the petitioners. 19. In the instant case, the applications in hand were filed through Mr. Srijib Chakraborty, Advocate for the petitioners. The petitioners stated on oath that they were not previously advised to file the applications for amendment of cause title and condonation of delay in preferring the memorandum of review after the statutory period of time by their erstwhile advocate. It is also contended by them that due to financial hardship they could not take proper step within time. 20. In my considered view the grounds shown for condonation of delay cannot be said to be vague, frivolous and therefore, unascertainable. The cause for delay in filing the application for amendment of memorandum of review are inbuilt in the application. Under such circumstances, I do not find any reason as to why the application for amendment of the review application by incorporating the names of the legal heirs of deceased respondent/opposite party should not be allowed for want of separate application under Section 5 of the Limitation Act. It is now well settled that a composite application for setting aside of abatement of appeal on condonation of delay can be entertained by the court and no separate application under Section 5 of the Limitation Act is required. On similar analogy, a time barred application for amendment of cause title of memorandum of appeal can very well be entertained if in the application itself sufficient cause for condonation of delay is explained. 21. I have already held that this Court is satisfied on the grounds set forth by the petitioners for condonation of delay in both the applications. 22. 21. I have already held that this Court is satisfied on the grounds set forth by the petitioners for condonation of delay in both the applications. 22. Therefore, the applications are allowed on contest, however without cost. 23. The cause title of the memorandum of review be amended by incorporating the names of the legal heirs and representatives in the cause title of the said memorandum. 24. Office is directed to make necessary incorporation within two weeks from date. 25. Delay in preferring the review application is also condoned. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.