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2024 DIGILAW 816 (GAU)

Muhibul Islam v. Md. Ikramul Majid

2024-06-04

SANJAY KUMAR MEDHI

body2024
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. The instant appeal has been preferred under Section 100 of the Code of Civil Procedure challenging a judgment and decree dated 26.08.2016 passed by the learned Civil Judge, Sivasagar in Title appeal No. 26/2016 whereby the application for condonation of delay in preferring the said appeal has been dismissed. The appeal was preferred against the initial judgment and decree dated 16.11.2015 passed by the learned Munsiff No. 1, Sivasagar in TS No. 77/2010. The appellant was the defendant in the said suit. 2. The TS No. 77/2010 was instituted by the present respondent as plaintiff for declaration that the defendant has no right to transfer the parental dwelling house and land to strangers. It was the stand of the appellant/defendant that the property, which he was seeking to transfer, was not the parental property. Be that as it may, the suit was decreed in favour of the plaintiff by the judgment and decree dated 16.11.2015. 3. The appellant herein had preferred an appeal before the learned Civil Judge, Sivasagar in Title Appeal No. 26/2016. The said appeal however being barred by limitation, an application was filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 31 days. The learned Civil Judge, Sivasagar however, vide the impugned order dated 26.08.2016 had rejected the application for condonation of delay and consequently the Title Appeal was also dismissed. It is the legality and validity of the said order which is the subject matter of challenge in this appeal. 4. I have heard Shri B. Baruah, learned counsel for the appellant whereas the sole respondent is represented by Shri S. Biswas, learned counsel. The records of the Trial Court have also been requisitioned and have been perused. 5. Shri Baruah, the learned counsel for the appellant has submitted that the learned First Appellate Court had taken a hyper technical approach in considering the application for condonation of delay. Though sufficient reasons were assigned justifying such delay, the same was not taken in the proper perspective and though the delay was of only 31 days, the same was not condoned leading to consequent dismissal of the appeal. It is submitted that the learned First Appellate Court had ignored the settled principles of law governing the adjudication process of a delay-condonation petition which requires a pragmatic and justice oriented approach. It is submitted that the learned First Appellate Court had ignored the settled principles of law governing the adjudication process of a delay-condonation petition which requires a pragmatic and justice oriented approach. He further submits that because of the impugned order, the appellant has been deprived of his substantive right to have a fair adjudication at the appellate stage. 6. Shri S. Biswas, learned counsel for the respondent has however submitted that the impugned order dated 26.08.2016 has cited reasons for disallowing the application for condonation of delay and the reasons being cogent, no interference may be made. The learned counsel however fairly concedes that the delay is not an inordinate one. 7. At the outset, this Court would like to clarify that dismissal of an appeal which is a consequence of rejection of an accompanying application filed for condonation of delay is held to be a decision rendered on the merits of the appeal, as has been clarified by the Hon'ble Supreme Court in the case of Shyam Sundar Sarma Vs. Pannalal Jaiswal & Ors. 2004 INSC 637 : (2005) 1 SCC 436 . In that view of the matter, there is no issue at all in preferring the present appeal which is the prescribed approach as per the settled position of law. 8. This Court has however noticed that while admitting the appeal vide order dated 05.05.2017, two substantial questions of law were framed which is reproduced as hereunder: “1. Whether the learned court below was correct in holding the present appellant to be a member of an undivided family and referring the suit property as undivided property on the face of the materials on record that the appellant and the respondents are residing separately in separate residences? 2. Whether the findings of the court below that the suit is hit under the proviso of Section 44 and Section 4of the Partition Act is correct?” An observation was however made that any other substantial question of law may be formulated at the time of hearing. 9. On perusal of the materials on record, it clearly transpires that the only issue which requires a determination is the legality of the order dated 26.08.2016 by which the delay- condonation petition of the appellant was rejected by the First Appellate Court. 10. 9. On perusal of the materials on record, it clearly transpires that the only issue which requires a determination is the legality of the order dated 26.08.2016 by which the delay- condonation petition of the appellant was rejected by the First Appellate Court. 10. It is a settled principle of law that it would be open for the High Court to modify the substantial questions of law which were initially framed depending on the facts and circumstances. In the considered opinion of this Court, it is the question with regard to the approach of the learned First Appellate Court in dealing with the application filed under Section 5 of the Limitation Act which would be the issue requiring a determination by this Court. Accordingly, on consent of the learned counsel for the parties, the substantial question of law is re-framed in the following manner: “Whether the dismissal of the application for condonation of delay in filing the appeal and thereby refusing to consider the gravity and merit of the appeal to see whether it has occasional failure of justice, has vitiated the impugned judgment/order?” 11. The aforesaid principles have been reiterated by the Hon'ble Supreme Court in the case of Vijay Arjun Bhagat and Ors. Vs. Nana Laxman Tapkire and Ors. 2018 INSC 491 : (2018) 6 SCC 727 wherein the proviso to Section 100(5) of the CPC was also considered. 12. To examine the aforesaid aspect, it is not necessary to have a meticulous examination of the record of the Trial Court records as the scope of examination is only with regard to the views of the First Appellate Court expressed in the order dated 26.08.2016 regarding condonation of delay. 13. It is not in dispute that the delay in preferring the first appeal was only 31 days. It is also not in dispute that the appeal preferred before the first Appellate Court was duly accompanied by an application under Section 5 of the Limitation Act, 1963. Though it is a settled principle that the said process cannot be turned into a mere mechanical process, what is required to be taken into consideration is whether the conduct of the concerned party in approaching the Court was found to be negligent and whether there was any deliberate laches on its part. 14. Though it is a settled principle that the said process cannot be turned into a mere mechanical process, what is required to be taken into consideration is whether the conduct of the concerned party in approaching the Court was found to be negligent and whether there was any deliberate laches on its part. 14. In the instant case apart from the issue that the delay in question was only of 31 days, this Court has noticed that reasons were assigned for explaining the said delay. The learned First Appellate Court however appears to have taken a hyper technical approach in seeking everyday's explanation. The Hon'ble Supreme Court in the landmark case of Collector, Land Acquisition, Anantnag v. Katiji, 1987 INSC 54 : (1987) 2 SCC 107 has laid down that there is no strict requirement of explaining each day's delay. In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Ors. 2013 INSC 620 : (2013) 12 SCC 649 the Hon'ble Supreme Court has laid down certain principles to be followed in deciding a delay - condonation application which are extracted herein-below: “21. From the aforesaid authorities the principles that can broadly be culled out are: 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” 15. Examining the impugned judgment in the context of the settled principles of law, it appears that the learned First Appellate Court had swayed away from the requirement of having a pragmatic and justice oriented approach. The impugned judgment and order dated 26.08.2016 passed by the learned Civil Judge, Sivasagar is accordingly held to be unsustainable in law. 16. The appeal is accordingly allowed by remanding the matter to be decided on merits by considering that the delay of 31 days has been explained and accordingly condoned. 17. The records be sent back expeditiously. The impugned judgment and order dated 26.08.2016 passed by the learned Civil Judge, Sivasagar is accordingly held to be unsustainable in law. 16. The appeal is accordingly allowed by remanding the matter to be decided on merits by considering that the delay of 31 days has been explained and accordingly condoned. 17. The records be sent back expeditiously. 18. Since the rival parties are represented in this Court, let the date of appearance before the learned First Appellate Court be fixed on 16.06.2024 whereafter the learned Court will proceed in accordance with law.