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2019 DIGILAW 964 (GAU)

Amrit Kalita v. Rajani Kanta Kalita

2019-08-29

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. A.D. Choudhury, learned counsel assisted by Mr. D. Choudhury, learned counsel for the applicant/petitioner and Mr. A. Iqbal, learned counsel for the respondent No. 1. 2. The petitioner herein, has filed a second appeal against the judgment and order passed in Misc. Appeal No. 18/2014 (corresponding to old Misc. Appeal No. 20/2012). As the said second appeal was filed beyond the period of limitation, the present application under Section 5 of the Limitation Act has been filed praying for condonation of delay of 1293 days. 3. Explaining the delay, the petitioner stated in the petition that the respondent herein, as plaintiff filed a suit (Title Suit No. 272/2003) for specific performance of contract, which was decreed on 30.11.2004 and an execution proceeding being Title Execution Case No. 23/2005 was instituted for execution of the said decree. When the Nazir of the Court visited the suit land on 15.06.2007 in connection with the execution of the decree, the present petitioner came to know about the decree, wherein, the petitioner was not a party. However, the land in possession of the petitioner was included in the suit property. Therefore, the present petitioner filed an application under Order 21 Rule 97 read with Rule 99 CPC which was rejected by the learned trial court. 4. The impugned order was carried forward to appeal, which also stood dismissed. After disposal of the Misc. Appeal No. 18/2014, the petitioner preferred a review petition, which was also dismissed on 24.07.2018. Thereafter, a second appeal has been preferred along with this petition for condonation of delay. 5. Learned counsel for the petitioner submits, that though, the delay was inordinate for a period of 1293 days, such delay was caused basically in pursuing the review petition. Learned counsel Mr. AD Choudhury contends, that the period spent for pursuing the review petition shall be excluded in calculating the period of limitation. This contention of the learned counsel for the petitioner has been countered by the learned counsel for the respondent Mr. A Iqbal, stating that the review and the appeal being concurrent and simultaneous remedy and not being consecutive one, the petitioner is not entitled to exclusion of time taken in pursuing the review petition, meaning thereby, the time consumed by the review petitioner shall not be added to the statutory period of limitation. A Iqbal, stating that the review and the appeal being concurrent and simultaneous remedy and not being consecutive one, the petitioner is not entitled to exclusion of time taken in pursuing the review petition, meaning thereby, the time consumed by the review petitioner shall not be added to the statutory period of limitation. In order to buttress his submission, learned counsel has placed reliance on a decision (Punjab & Haryana High Court) in Mahabir vs. Bhawani and Another, AIR 2009 (NOC) 1314 (P&H), wherein, the Hon'ble Punjab and Haryana High Court held that delay in prosecuting a review petition in Court having jurisdiction and the said review petition being dismissed, not on technical ground, but on merit, the time taken in prosecuting the review petition cannot be excluded while considering the period of limitation. Mr. Iqbal further submits that besides the time taken in pursuing the review petition there was a further delay of 129 days after the disposal of review petition, which has not been satisfactorily explained. 6. Mr. A.D. Choudhury placing reliance on Bhivchanda Shankar More vs. Balu Gangaram More decided on 7th May, 2019 in Civil Appeal No. 4669 of 2019 as well as the decision of Privy Council in Brij Inder Singh vs. Kanshi Ram, (1917) AIR PC 156 contends, that the period taken in pursuing the review petition has to be excluded, as a general rule, unless, it is found that the review petition was pursued by the petitioner without any bona-fide and only as a dilatory tactics. 7. The Hon'ble Privy Council in Brij Inder Singh (supra) approved the principle as a general rule that "if a party presents an application for review of a judgment within the ordinary period limited for appealing, the time occupied by the Court in disposing of such application will not be reckoned among the days limited for appealing, but will be added thereto, and a memorandum of appeal represented within such extended period will be received as presented within time." The Hon'ble Privy Council also observed that such principle is only a general rule, and not absolute, inasmuch as, if the party is found to be taking shelter of review as a dilatory tactics, such general rule may not apply. 8. 8. In Bhivchandra Shankar More vs. Balu Gangaram More (supra), the Apex Court confronted with the question whether the time spent in the proceedings taken to set aside the ex-parte decree constitute "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1908, so as to condone the delay in preferring an appeal against the ex-parte decree observed that "the remedies provided is simultaneous and cannot be converted into consecutive remedy" cannot be applied in a rigid manner and in appropriate circumstances, the time spent in pursuing the application under Order IX Rule 13 CPC, can be accepted as "sufficient ground" for condoning the delay in filing appeal against the ex-parte decree. The Apex Court held as follows: 14..........................The above observation of the High Court that "the remedies provided as simultaneous and cannot be converted into consecutive remedies" cannot be applied in a rigid manner and as a straitjacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in 10 pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bona-fide in pursuing the two remedies consecutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits. 15. It is a fairly well settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bona-fide could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under:- "6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay." 19. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay." 19. In the facts and circumstances of the present case, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as "sufficient cause" for condoning the delay in filing the first appeal. The impugned judgment of the High Court cannot be sustained and is liable to be set aside........ 9. What follows from the above ratio in Bhivchandra Shankar More vs. Balu Gangaram More (supra) is that the Apex Court also approved the rule adopted by the Privy Council, that the remedy provided being simultaneous cannot be converted into consecutive remedy is only a genuine rule, not an absolute or rigid one. Therefore, in my considered view the same principle can be applied in case of review. Though the remedy of review under section 114 of the CPC and appeal against any judgment or order is concurrent or simultaneous, nonetheless, depending on the facts and circumstances of the case, these two remedies can be resorted to consecutively. Only rider is that the Court has to be satisfied as to the bona-fide of the parties seeking to file appeal after pursuing the review petition. If the Court finds that the party was pursuing the review honestly without any mala-fide, the time spent in pursuing the review can be accepted as "sufficient cause" for condoning the delay in preferring the appeal and the time taken in pursuing the review petition can be excluded in computing the period of limitation. But, if it is found that the review petition was filed and pursued as dilatory tactics and the party was guilty of mala-fide in pursuing the two remedies consecutively, it may not be entitled to the indulgence of condonation of the time taken in pursuing the review petition. Thus, it can be said that time spent in pursuing review petition can be construed as "sufficient cause" within the meaning of Section 5 of the Limitation Act or Order 41 Rule 3A of the CPC depending on the facts and circumstances of a particular case. 10. Thus, it can be said that time spent in pursuing review petition can be construed as "sufficient cause" within the meaning of Section 5 of the Limitation Act or Order 41 Rule 3A of the CPC depending on the facts and circumstances of a particular case. 10. Having heard the learned counsel for both the sides and also having gone through the materials on record, I find that though the delay in the present case was for a period of nearly three years (1293 days), which is undoubtedly an inordinate delay, most of the period of delay is attributable to the time spent in pursuing the review petition. Therefore, the time spent in pursing the review petition deserves to be condoned, unless the petitioner in the instant case is found to have pursued the review petition by adopting a dilatory tactics or lack of bona-fide is attributable to him. One must bear in mind, that by belated filing of appeal, a party does not stand benefited, rather remains exposed to the mischief of a good case being throttled at the threshold. Therefore, there cannot be a presumption or lack of bona-fide or adopting a dilatory tactics against the petitioner seeking indulgence of the Court for condonation of delay. Because after all, negligence, lack of bona-fide or lack of due diligence etc. are question of fact and therefore, when "Lack of bona-fide" negligence mala-fide etc. are alleged, such allegations need to be proved or there must be tangible materials on record to establish such facts. From the materials on record, I do not find anything to attribute mala-fide to the petitioner or to hold that he was pursuing the review petition as a dilatory tactics. When there is no materials to suggest, that the petitioner, who sought to pursue the two remedies consecutively, which are otherwise concurrent or simultaneous, adopted dilatory tactics or actuated by mala-fide, the ratio laid down by the Apex Court in Bhivchandra Shankar More vs. Balu Gangaram More (supra) shall apply and the time spent in pursuing the review in the facts and circumstances of the present case can be construed as 'sufficient cause' for condoning the delay. 11. Now the question remains, whether the 129 days delay after the disposal of the review petition has been explained or not, or in other words, whether sufficient cause has been shown for the said period of 129 days. 11. Now the question remains, whether the 129 days delay after the disposal of the review petition has been explained or not, or in other words, whether sufficient cause has been shown for the said period of 129 days. It is the established principle that sufficient cause in relation to condonation of delay has to be construed liberally, so as to be conducive to the basic functions of the Court, i.e. advancing substantial justice. It is also held by the Apex Court in a catena of decision that it is not the length of delay, rather, the sufficiency or reasonableness of the cause, which is to be taken into account. Unless negligence, lack of bona-fide or gross inaction is attributable to the cause of delay, Court should condone the delay by taking pragmatic view. 12. Learned counsel for the respondent submits that the delay of 129 days, after disposal of the review petition, till filing of the second appeal has not been explained properly and sufficiently, though some explanation has been given covering a period of about 2 weeks. Contention of the learned counsel for the respondent is that, even if the time spent in pursuing the review petition is condoned, the delay of 129 days after disposal of the review petition, cannot be condoned in absence of sufficient cause or explanation on day to day basis. 13. The Apex Court in Collector of Land Acquisition Anantnag vs. Katiji, (1987) 2 SCC 107 , observed that explaining day to day delay cannot be construed in a pedantic manner and the Court should always take a pragmatic view while construing "sufficient cause" and the explanation advanced for the delay. 14. Having regard to the cause attributed to the delay as indicated in the petition and the entire facts and circumstances of the present case, I am of the view that the cause shown by the petitioner in the instant case can be construed as "sufficient cause" for giving indulgence to the petitioner to file the appeal after the statutory period of limitation. Accordingly, the petition is allowed and the delay of 1293 days stands condoned. 15. Office to list the connected appeal in appropriate column.