Sanjoy Mondal & Anr vs Ganesh Kamilya
2022 Latest Caselaw 5224 Cal

10.08.2022
 Item no. 04
Court No.32
Avijit Mitra


                             FMAT 697 of 2019
                                  with
                            IA No.CAN 1 of 2021
                                  with
                            IA No.CAN 2 of 2021


                            Sanjoy Mondal & anr.
                                 - Versus -
                            Ganesh Kamilya

                      Mr. Arif Ali,
                      Mr. Md. Faizan Yakub
                                    ....for the appellants
                      Mr. Nilanjan Bhattacharjee,
                      Mr. Sanjay Karar,
                      Mr. Abhilash Chatterjee
                                    ....for the respondent

The instant appeal arises out and in connection

with the Judgment and order no.67 dated 7th April,

2016 passed by the learned Civil Judge (Senior

Division), 1st Court at Paschim Medinipur in Judicial

Miscellaneous Case No.14 of 2015 passed in connection

with OS No. 216 of 2009.

Records would reveal that at the time when the

instant appeal was filed, despite the same being barred

by limitation, was not accompanied by an application

praying for condonation of delay. The appeal was thus

defective as time-barred. The aforesaid defect would

corroborate from the report of the Stamp Reporter dated

17th July, 2019.

On 9th March, 2021 this Hon'ble Court was

pleased to dismiss the appeal as time barred since the

defect as pointed out in the report of the Stamp

Reporter had not been cured.

Since then an application has been filed by the

appellants under Section 5 of the Limitation Act being

CAN 1 of 2021 and another application has also been

filed praying for recall of the order dated 9 th March,

2021, which is registered as CAN 2 of 2021.

Affidavits have since been exchanged between the

parties. By consent of the parties the hearing of the

instant appeal and the connected applications are taken

up together.

Mr. Ali, learned advocate representing the

appellants submits that in the year 2009 a suit for

specific performance for an agreement for sale and for

other consequential reliefs was instituted against the

present defendant. The appellants/plaintiffs could not

succeed in obtaining an order of injunction from the

Trial Court, however, on an appeal filed by the plaintiffs,

this Hon'ble Court by an order dated 8 th June, 2010

passed in FMA 32 of 2010 was inter alia pleased to

direct the parties to maintain status quo in relation to

the suit property till disposal of the suit.

      The       suit     was       contested      by     the

respondent/defendant      and      when   the   matter   was

running in the Peremptory Board on 25 th March, 2015

learned Court was pleased to dismiss the suit as no

steps were taken by the plaintiffs on the said date. The

learned Court found the plaintiffs to be absent, on

repeated calls, at 11.25 A.M. and 11.40 A.M and

dismissed the suit. Immediately thereafter an

application under Order IX Rule 9 of the Code of Civil

Procedure praying for an order to set aside the dismissal

was filed.

The said application under Order IX Rule 9 of the

Code of Civil Procedure was contested by the

respondent. By judgment and order dated 7 th April,

2016 the learned Civil Judge (Senior Division) 1 st Court

at Paschim Medinipur, found that despite the plaintiffs

claiming, that on the date of dismissal, had filed an

adjournment petition, records revealed that no such

application had been filed. Proceeding on the aforesaid

premise, the learned Judge proceeded to dismiss the

application under Order IX Rule 9 of the Code of Civil

Procedure.

Proceeding on an erroneous advise the

appellants/plaintiffs had challenged the aforesaid order

by filing a Miscellaneous Appeal before the learned

District Court, which was ultimately dismissed by an

order dated 16th January, 2019 passed the learned

Additional District Judge, 6th Court at Paschim

Medinipur in Miscellanoues Appeal No. 43 of 2016, on

merits.

Challenging the aforesaid order of dismissal, a

revisional application was filed before this Hon'ble Court

which was registered as C.O. No. 909 of 2019. By order

dated 11th June, 2019 this Hon'ble Court found that the

learned Additional District Judge, 6 th Court, Paschim

Medinipur did not have the pecuniary jurisdiction to

hear out the appeal and consequently set aside the

order dated 16th January, 2019 passed by the learned

Additional District Judge, 6th Court, Paschim Medinipur

in Misc. Appeal No.43 of 2016. By the aforesaid order,

this Hon'ble court also made it clear that the same will

not prevent the appellants from preferring an appeal

before an appropriate forum.

The present appeal appears to have been filed on

11th July, 2019. The report of the Stamp Reporter dated

17th July, 2019 indicates that there is a delay of 1100

days in preferring the appeal.

According to Mr. Ali out of 1100 days, 969 days

had been taken by the learned Additional District

Judge, 6th Court at Paschim Medinipur to dispose of the

appeal, the balance 131 days were spent pursuing its

remedy before the Hon'ble Court in C.O. No.909 of

2019. The appellants are entitled to the benefit of

Section 14 of the Limitation Act, 1963 and in computing

the period of limitation, the appellants are entitled to

exclusion of the time spent by the appellants for

pursuing its remedy bonafide before the District Court

at Paschim Medinipur, which did not have pecuniary

jurisdiction to decide the appeal. Since an order was

passed on merits dismissing the appeal, it was

incumbent for the appellants to challenge the same and

to have the same set aside, prior to filing an appeal

before this Hon'ble Court and that the entire period of

1100 days delay should be excluded while computing

the period of limitation.

On the issue as regards failure to take steps for

not filing an application under Section 5 of the

Limitation Act, 1963, he submits that after the instant

appeal was filed the concerned clerk, who was in

contact with the appellants lost touch with the

appellants due to personal difficulties as also due to

pandemic. Incidentally, the said clerk also passed away

on 18th April, 2020 during the lockdown. There was a

complete communication gap by reasons of the

pandemic. The advocates engaged by the appellants on

account of their personal difficulties as also due to fear

of Covid attack, had stayed away and as a result the

appellants had no knowledge that their appeal appeared

in the list on 21st January, 2021, 25th January, 2021

and 9th March, 2021. There was no intentional laches on

the appellants' part in not filing the application under

Section 5 of the Limitation Act.

Mr. Ali submits that the suit has not been heard

on merits. The appellants had taken all possible steps

for hearing of the suit by engaging advocates. The

learned Court did not approach application under Order

IX Rule 9 of the Code of Civil Procedure from its proper

perspective and the learned Court failed to notice that

the plaintiffs having furnished sufficient explanation,

ought not to have dismissed the application under

Order IX Rule 9 of the Code of Civil Procedure. The

order of dismissal seriously prejudices the plaintiffs.

Such dismissal should be set aside and the learned Trial

Court should be directed to hear the suit on merit.

Per contra, Mr. Bhattacharjee, learned advocate

representing the respondent submits that there is no

proper explanation given by the appellants for

condoning the delay, the appellants were obliged to

provide for day to day explanation which has not been

given. According to him only 969 days delay, has been

explained and there is no proper explanation for balance

131 days. Drawing our attention to the application for

recalling the order dated 9th March, 2021, he submits

that the appellants were aware that there was delay in

filing the appeal and knowledge of such fact as admitted

by the appellants in the application, dates back to 20 th

July, 2019.

The appeal has not been dismissed for default but

has been dismissed on account of failure on the part of

the appellant in taking steps for filing the application

under Section 5 of the Limitation Act and for not curing

the defects. Drawing our attention to the order dated

21st January, 2021, 25th January, 2021 and 9th March,

2021 he submits that the ample opportunity was

provided to the appellants to cure the defects. No steps

having been taken by the appellants to cure the defects.

The appeal itself has been dismissed.

The appellants are obliged to afford explanation

for not only the time taken in preferring the appeal but

also the time taken by them in filing the application for

condonation of delay, which has been filed only on 17 th

of April 2021 and for the aforesaid delay no explanation

has been given in the application under Section 5 of the

Limitation Act. According to Mr. Bhattacharjee on the

aforesaid ground the application under Section 5 of the

Limitation Act as also the application for recall of the

order dated 9th March 2021 should be dismissed. In

support of his arguments, he places reliance on the case

of Esha Bhattacharjee -Vs. - Managing Committee of

Raghunathpur Nafar Academy & Ors., reported in (2013)

12 SCC 649. Drawing our attention to paragraph 21 of

the aforesaid judgment he submits that a distinction

has been drawn between inordinate delay and delay of

short duration and relying on the aforesaid judgment

submits that inordinate delay warrants strict approach

while delay of shorter duration calls for a liberal

approach. By placing reliance on the aforesaid

judgments submits that in the instant case there is an

inordinate delay of 1100 days and a stricter approach is

necessary. Since the appellants had failed to provide

appropriate explanation, the application for recalling

deserves to be dismissed.

We have heard the parties at length. We have

considered the submissions made by the respective

advocates and the pleadings which are on record.

Ordinarily when an appeal is presented after the expiry

of the period of limitation specified therefore, it ought to

be accompanied by an application supported by an

affidavit setting out the facts on which the appellant

relies on to satisfy the Court that he had sufficient

cause for not preferring the appeal within the time

specified. As such, in a time barred appeal, unless the

same is accompanied by an application under Section 5

of the Limitation Act, such an appeal cannot be

entertained. In the instant case it appears that since the

same was not accompanied by an application under

Section 5 of the Limitation Act, the same remained

defective and ultimately by order dated 9 th March, 2021

since the defect as indicated in the report of the Stamp

Reporter on 17th July, 2019 was not cured, the appeal

was dismissed.

Mr. Bhattacharjee advocate representing the

respondent has submitted that the appellants are

required to explain not only the delay in filing the appeal

but also the delay in filing the application under Section

5 of the Limitation Act. We are, however, unable to

accept the aforesaid contention of Mr. Bhattacharjee. A

perusal of Rule 3A of Order 41 of the code of civil

procedure would demonstrate that such rule only

requires the appellants to explain the delay in preferring

the appeal, upto the time the same is presented.

We thus find that the appellants had sufficiently

explained the reasons for not taking steps for removal of

the defect and/or for non-appearance on 21 st January

2021, 25th January 2021 and on 9th March 2021. We

find that application being CAN No. 1 of 2021 has been

affirmed on 17th April 2021. We also find that the Covid

period intervened, when on account of failure to take

steps by the appellants the appeal itself was dismissed.

Since the application under Section 5 of the Limitation

Act has already been filed praying for condonation of

delay in presenting the appeal, we recall the order dated

9th of March, 2021 by allowing the application being

CAN 2 of 2021 and proceed to hear out the application

under Section 5 of the Limitation Act which has been

registered as CAN No. 1 of 2021.

Although the Stamp Reporter in his report has

indicated that there is a delay of 1100 days in

presenting the appeal, it would appear from the

submission made by the parties that the actual delay is

about 131 days as 969 days had been spent by the

appellants pursuing its remedy before the Learned

Additional District Judge, 6th Court, at Paschim

Medinipur. This fact has not been disputed by the

advocate representing the respondent. Admittedly the

learned Additional District Judge, 6 th Court, Paschim

Medinipur did not have the pecuniary jurisdiction to

entertain the appeal and as such the petitioner is

entitled to the benefit of Section 14 of the Limitation Act

for the aforesaid period. The appellants have contended

that 131 days has been spent by the appellants for

pursuing its remedy before the Hon'ble Court in C.O.

No. 909 of 2019. Records reveal that the Additional

District Judge, 6th Court, Paschim Medinipur by

judgment and order dated 16th January 2019 had

dismissed the appeal. It was therefore obligatory for the

appellants to challenge the order and to have its set

aside. By order dated 11th June 2019 passed in CO No.

909 of 2019 the order of the Additional District Judge,

6th Court, Paschim Medinipur in Misc. Appeal No. 43 of

2016 was set aside. As such prior to passing of the

order dated 11th June 2019 there was no real

opportunity available to the appellants to present the

appeal. It would appear that the appeal has been

presented on 11th July 2019.

It is well settled that limitation stops once the

appeal is filed. The delay in filing the application for

condonation of delay in connection with such appeal

cannot add on to the delay that had occurred in filing

the appeal. It is well settled that the expression

"sufficient cause" within the meaning of Section 5 of the

Limitation Act should receive a liberal construction

when no negligence or inaction or want of bona fide is

imputable to the party. Acceptance of explanation

furnished should be the rule and refusal an exception.

The length of delay is not a matter but acceptability of

the explanation is the only criterion. For the inaction

and omission on the part of the learned advocate and

his clerk, the appellants cannot suffer. The facts would

reveal that the delay was neither mala fide nor

intentional and it cannot be said that the appellants

adopted dilatory tactics. The conduct of the appellants

does not on the whole warrant to castigate them as an

irresponsible litigants. The powers of the Court to hear

the party, where ends of justice require, are unlimited.

Normally, better justice is likely to be done if the two

sides are heard on merits.

We thus find that there is no inordinate delay in

preferring the appeal and we further find that the delay

in preferring the appeal has been sufficiently explained,

as such we allow the CAN application being CAN No. 1

of 2021 and proceed to hear out the appeal.

We have taken note of the application filed under

Order IX Rule 9 of the Code of Civil Procedure. We find

that in paragraph 5 of the said application, the

appellants pleaded sufficient cause for non appearance.

The appellants had engaged an advocate, on his ground

an accommodation was sought, unfortunately the

learned Court was pleased to dismiss the suit for

default.

We have scrutinized the trial court papers as

made over by the parties; we find that the learned Judge

had proceeded to dismiss the application under order IX

Rule 9 of the Code of Civil Procedure which was

registered as Judicial. Misc. Case No. 14 of 2015 by his

order dated 7th April 2016 on the premise that no

petition has been filed by the plaintiffs' seeking

adjournment. The learned Court however while

dismissing the said application did not taken into

consideration the very object of Order IX rule 9 of the

Code of Civil Procedure 1908. The learned Court

proceed on the premise that the plaintiffs having not

filed an application for adjournment, was not entitled to

take benefit of disclosure of sufficient cause for its non-

appearance on the date when the matter was dismissed

for default. Non filing of an application for adjournment

cannot be a sole ground for dismissal of an application

of Order IX rule 9 of the Code of Civil Procedure if the

plaintiffs are otherwise is a position to satisfy that there

was sufficient cause for their absence, when the suit

was called on for hearing. From the averments made in

the application under Order IX Rule 9 of the Code of

Civil Procedure and taking note of the fact that the

plaintiffs had been sincerely proceeding with suit, we

are of the view that the suit ought not to have been

dismissed, least without issuance of a show-cause.

Records reveal that on 25th March 2015, the suit was

dismissed for default when the date was fixed for

adducing evidence by the plaintiffs. No show cause

notice appears to have been issued. The suit is for

specific performance and an interim order was

subsisting on the date when the suit was dismissed. We

are of the view that the instant suit ought to be heard

on merits. We, therefore, set aside the order dated 7 th

April 2016 passed by the Learned Civil Judge, Senior

Division, 1st Court, Paschim Medinipur in J. Misc. Case

No. 14 of 2015 and restore the suit, being other suit No.

216 of 2019 to its original file and number before the 1 st

Court, of Civil Judge (Senior Division), Paschim

Medinipur. Having heard the parties, we are of the view

that the interim order that was subsisting shall continue

till disposal of the suit and the suit shall be heard from

the stage the same has been dismissed on 25 th March

2015. Since the matter has been pending for several

years now, we direct the learned Civil Judge (Senior

Division), 1st Court, Paschim Medinipur to hear out the

suit as expeditiously as possible without granting any

unnecessary adjournment to the parties.

We are of the opinion that justice would subserve

if respondent is awarded Rs.50,000. The appellants are

directed to prepare a bank draft in the name of the

Ganesh Kamilya, the respondent herein who is also

defendant in the suit. The aforesaid bank draft shall be

handed over by Mr. Ali advocate representing the

appellants to Mr. Bhattacharjee advocate for the

respondent within three weeks from date against a

proper receipt to be issued by Mr. Bhattacharjee.

With the above directions and observations, the

appeal being FMAT No. 697 of 2019 and the connected

applications being CAN No. 1 of 2021 and CAN No. 2 of

2021 accordingly stand disposed of.

There shall however be no order as to costs.

Urgent Photostat certified copy of the order if

applied for, be made over to the parties as expeditiously

as possible.

(Raja Basu Chowdhury,J.) (Tapabrata Chakraborty J.)