Calcutta High Court (Appellete Side)
7 Sri Ram Ratan Chowdhary vs Nasir N. Sarkar & Ors on 29 June, 2022
12 29.06.
AGM 2022
/
RKB C.O. 1510 of 2022
Ct
07 Sri Ram Ratan Chowdhary
Vs
Nasir N. Sarkar & Ors.
Mr. Surojit Nath Mitra, Sr. Adv
Mr. Debjit Mukherjee,
Ms. Susmita Chatterjee, ... For the petitioner.
Mr. Amal Kanti Das,
Mr. Abu Fazle Md. Shamim
Mr. Imran Karim
Ms. Anyasha Das,. ... For the Opposite parties.
The subject matter of challenge in this revisional
application is against the judgment and order dated 29 th
April, 2022 passed by learned Civil Judge (Senior
Division), 2nd Court, Howrah, in Misc Appeal No. 38 of
2019 directing the Court below to afford an opportunity
of adducing evidence, for decision of an application
under Section 5 of the Limitation Act, filed in
connection with a Misc Case No. 81 of 2017, registered
under Order 9 Rule 13 of the Code of Civil Procedure
before learned Civil Judge (Junior Division), 3 rd Court,
Howrah,
Admittedly, there has been a reversal of order,
passed by the First Lower Appellate Court sending the
case back on remand for decision afresh of an
application under Section 5 of the Limitation Act, after
providing an opportunity to parties to adduce evidence.
Mr. Surojit Nath Mitra, learned Sr advocate
appearing for the petitioner submits that there has been
an ex parte decree granted by the trial Court, which was
challenged by the opposite parties by filing an
application under Order 9 Rule 13 of the Code of Civil
Procedure, and it was registered accordingly as a Misc
Case No. 81 of 2017 before the learned Civil Judge
(Junior Division), 3rd Court, Howrah. Since, there was
some delay caused in filing Section 5 application, an
application under Section 5 of the Limitation Act was
also filed by the opposite parties praying for
condonation of delay.
The Court below dismissed the Section 5
application upon receiving affidavits, and counter
affidavits, thereby extending opportunity of hearing to
both the parties. The decision of the trial Court rejecting
the Misc Case No. 81 of 2017 was carried in appeal vide
Misc Appeal No. 38 of 2019 of learned Civil Judge
(Senior Division), 2nd Court, Howrah.
Mr. Mitra at the very threshold of this case
strenuously contends that even in absence of any point
taken as ground in the memorandum of appeal, the
Court below erroneously decided the misc appeal after
sending the case back on remand for decision afresh of
an application under Section 5 of the Limitation Act,
directing the parties to adduce evidence, without any
specific findings that evidence is essentially required for
the decision of Section 5 application.
Mr. Mitra further contends that when the trial
Court has provided an opportunity of hearing upon
receiving affidavits and counter affidavits in terms of the
proposed prayer of opposite parties, adducing of
evidence is not compulsorily required, and unless such
finding is there by the Court below that adducing of
evidence is inevitable, parties are not obliged to adduce
evidence for a decision of an issue, particularly, when
such point requiring decision by the appellate body is
missing in memorandum of appeal.
It is thus submitted by Mr. Mitra that exercise of
the authority by the First Lower Appellate Court has not
been properly made in terms of the points raised in the
memorandum of appeal.
Per contra, Mr. Amal Kanti Das, learned advocate
appearing for the opposite parties disputes with the
submission, raised by Mr. Mitra, submitting that no
illegality has been committed by the Lower Appellate
Body in sending back the case on remand to the trial
Court for decision afresh of Section 5 application, after
providing an opportunity to parties to adduce evidence.
Learned advocate for the opposite parties further
submits that if decision of an issue is reached upon
collecting evidence, the same cannot be considered to
be a bad exercise of power. According to the opposite
parties, unless there is something patently revealed
that there has been error committed by the Court below
in exercise of jurisdiction vested to it, and unless there
is express perversity shown in the impugned order, the
impugned order can not be interfered with questioning
the same.
Having considered the submissions of both sides,
it appears that the appellate Court sent back the case
on remand directing the trial Court for a decision
afresh of an application under Section 5 of Limitation
Act, after providing an opportunity to parties to adduce
evidence.
The requirement of adducing evidence by a
necessary finding appears to be sine qua non for a
decision of the First Lower Appellate Court, before
sending the case back on remand for decision afresh of
an issue pertaining to an application under Section 5 of
the Limitation Act for condonation of delay.
Upon perusal of the impugned order, it appears
that there has been no conscious findings reached by
the Appellate Court about the extreme need and
essential requirement of adducing evidence, to be led
by the parties, for a decision of Section 5 application.
But at the same time, the Court always desire to
have best evidence for decision of an issue. If evidence
is at all required for decision of an issue afresh, there
has to be a finding reached by the First Lower Appellate
Body prior to sending the case back on remand that
recording of evidence is inevitable, to be adduced by
parties, without which the issue can not be effectively
adjudicated.
If evidence was at all required for decision of
section 5 application, the First Lower Appellate Court
could have itself collected the evidence directing the
parties to adduce evidence in the pending appeal, that
exercise appears to have not been done by the First
Lower Appellate Court. Therefore, unless there is
specific findings reached by the First Lower Appellate
Court, as regards the essential requirement of adducing
evidence for a decision of an application afresh under
Section 5 of the Limitation Act, the impugned order
relegating the matter to Trial Court on remand for
decision of an issue appears to contrary to law. The
same as such is not sustainable and set aside
accordingly.
The judgment and order dated 29 th April, 2022
passed by the by learned Civil Judge (Senior Division),
2nd Court, Howrah in Misc Appeal No. 38 of 2019 is set
aside with a direction upon Appellate Court below to
hear out the same afresh, after addressing the issue as
to the essential requirement of adducing evidence for a
decision of Section 5 application, and resolve the same
in accordance with law within eight (08) weeks from the
date of communication of this order.
With this observation and direction, the revisional
application stands disposed of.
Urgent photostat certified copy of the order, if
applied for, be given to the parties on usual
undertakings.
(Subhasis Dasgupta, J)
