Majdia Sudhir Ranjan Lahiri ... vs Arindam Bhattacharyya & Ors
2021 Latest Caselaw 1617 Cal

 S/L 25.
2.03.2021
   S.D.

                           S.A.T. 68 of 2020
                                With
                            CAN 1 of 2020
                            CAN 2 of 2020
                Majdia Sudhir Ranjan Lahiri Mahavidyalaya
                                   Vs.
                      Arindam Bhattacharyya & Ors.

            Mr. Arijit Bardhan
            Mr. Samik Sarkar
                                               ....For the petitioner.

            Mr. Indranil Nandi
            Mr. Sayak Konar
                                       ...For the Respondent Nos. 1, 2 & 3.

In re: CAN 1 of 2020

This is an application for condonation of delay under

Section 5 of the Limitation Act, 1963 in preferring the

Memorandum of Appeal from appellate decree dated July 31,

2019 passed by learned Additional District Judge, 4th Court,

Krishnanagar, District - Nadia in Title Appeal No. 92 of 2006.

The respondents have filed affidavit-in-opposition and the

appellant has also filed affidavit-in-reply to the affidavit-in-

opposition filed on behalf of the respondents.

Heard learned Advocate for the parties.

It is submitted on behalf of the appellant that the

appellant/petitioner had applied for certified copy of the

appellant decree dated July 31, 2019 in Title Appeal No. 92 of

2006 on 3.8.2019 and the Certified copy of the said judgment

and decree was received on 19.9.2019 after 47 days. It is

further submitted that the petitioner/appellant is a college

affiliated to the University of Kalyani situated in the district

of Nadia and the third Semester Examination for B.A., B.Sc.

and B.COM (Honours) of the University of Kalyani

commenced from 16.12.2019 and the 1st Semester

Examinations commenced from 17.12.2019 and the said

examinations continued till 4.2.2020. During this period,

seats for examination of students were allotted in the

petitioner college and as such it was not possible for the

person authorized to contact the learned Advocate regarding

the filing of the Memorandum of Appeal. The dates of

examination are evident from the schedule published by the

Controller of Examinations, University of Kalyani for the said

1st Semester and 3rd Semester examinations. It is further

submitted that from 25.12.2019 till 2.01.2020 due to the annual

winter vacations, the High Court at Calcutta remained closed

as such during the said vacation it was not possible for the

college administration and the authorized person being the

Teacher-in-Charge to contact the learned Advocate for the

purpose of filing the Memorandum of Appeal. It is also

submitted that the Teacher-in-Charge, could hold conference

with learned Advocate onlyon 6.2.2020, and the authorized

person was advised to collect certified copies of the exhibited

documents from the court below and to bring copies of

certain other documents and on 10.2.2020, the petitioner came

to learned from an information slip of the Court of the

learned Additional District Judge (4th Court), Krishnanagar,

Nadia, that the original documents have been taken by the

respondents on 4.1.2020.

It is categorically stated that the Teacher-in-Charge

being authorized person of the college, fell ill due to a

respiratory tract infection from 11.2.2020, who remained unfit

till 16.2.2020, but due to weakness he could not travel from

Krishnanagar, Nadia to Kolkatta to hand over the documents

as advised and he met learned Advocate only on 18.2.2020.

Thereafter Memorandum of Appeal was drafted and settled

which took six days and the same was finalized on 24.2.2020

and filed on 25.2.2020.

Accordingly, it is submitted that there has been no

willful default or negligence on the part of the

petitioner/appellant in preferring the Memorandum of

Appeal from Appellate Decree dated 31.7.2019.

Learned Advocate for the respondents has contested

the application contending inter lia, that there is no

justification and explanation regarding the winter vacation of

the Hon'ble Court following between 25.12.2019 to 2.1.2020

for the contention taken that the Semester Examination had

commenced on 16.12.2019 and concluded on 4.2.2020. It is

categorically stated that there is no sufficient cause shown by

the petitioner/appellant which prevented the petitioner from

filing Memorandum of Appeal within the stipulated time and

accordingly it is urged that there has been willful default on

the part of the petitioner to prefer the Memorandum of

Appeal. It is contended that from the statement made in

paragraph no. 12, it is surprising to note that learned

Advocate for the petitioner failed to take the application from

the office of the Oath Commissioner from March 2020. After

completion of the affirmation, inasmuch as the Nationwide

Lockdown from March, 2020 even the resolution of Bar

Council of West Bengal in this regard was adopted on

16.3.2020. Therefore, there is no explanation to show as to

why the appellant could not get the said application affirmed

prior to imposition of the Nationwide Lockdown. On the

contrary, it appears that the said application was affirmed on

9.12.2020. It will, therefore, appear that there were deliberate

and intentional latches on the part of the appellant in

preferring the appellant.

In reply on affidavit, it is submitted that 5.3.2020 being

a Thursday, the clerk of learned Advocate was told by the

Commissioner to come on the following week to collect the

affirmed petition. In the week that followed 9.3.2020,

Monday and 10.3.2020, Tuesday were holidays for Holi and

on 11.3.2020, the said clerk of learned Advocate was again

told to collect the affirmed petition after two days but in the

meantime, he fell ill with cold and fever bearing symptoms

similar to flu and as such isolated himself due to the

prevailing fear of the Covid-19 virus outbreak and could not

come to Court the following week and from the week that

followed, the state was put under lockdown and Hon'ble

Court remained closed. As such the said affirmed petition

could not be filed prior to the Lockdown and the

Memorandum of Appeal was filed on 25.2.2020.

Having heard the learned Advocates for the parties and

having considered the contentions so made on behalf of the

parties and further bearing in mind complete Nationwide

Lockdown due to pandemic situation for Covid-19, the

explanation offered by the petitioner/appellant appears to be

satisfactory and sufficient in explaining the delay of 71 days

in preferring the appeal in my considered view.

Accordingly, the application for condonation of delay

under Section 5 of Limitation Act, 1963 in preferring the

Memorandum of Appeal from the Appellate Decree dated

July 31, 2019 is hereby accepted and the delay of 71 days is

condoned.

Thus, the application being CAN 1 of 2020 is allowed

and disposed of.

No order as to costs.

Let the Memorandum of Appeal be placed before the

appropriate Division Bench of this Hon'ble Court for hearing

under Order XLI Rule 11 of Code of Civil Procedure.

(Shivakant Prasad, J.)