Calcutta High Court (Appellete Side)
Sri Basudeb Biswas vs Golam Laskar & Ors on 23 March, 2022
23.03.2022
SL No.14
Court No.8
(gc)
SAT 4 of 2022
With
CAN 1 of 2022
With
CAN 2 of 2022
Sri Basudeb Biswas
Vs.
Golam Laskar & Ors.
(Via Video Conference)
Mr. Sankar Prashad Dalapati,
Mr. Satyajit Mahata,
Mr. Subrata Sarkar,
....for the Appellant.
Mr. Satyajit Mandal,
Mr. Shouvik Naskar,
...for the Respondent No.1.
Re: CAN 1 of 2022
This is an application under Section 5 of the
Limitation Act for condonation of delay.
The appeal is arising out of the judgment dated 28th
February, 2020.
In view of the order of the Hon'ble Supreme Court in
Miscellaneous Application No.665 of 2021 in SMW (C)
No.3 of 2020 dated 23rd September, 2021 in which at
Paragraph 8, the Hon'ble Supreme Court has clearly
stated that:
"In cases where the limitation would have
expired during the period between 15.03.2020
till 02.10.2021, notwithstanding the actual
balance period of limitation remaining, all
persons shall have a limitation period of 90
days from 03.10.2021. In the event the
actual balance period of limitation remaining,
with effect from 03.10.2021, is greater than
90 days, that longer period shall apply."
And by reason of the Special Bench order dated 17th
January, 2022 (WPA 5323 of 2020) extending the
interim order in all matters till 28th February, 2022, the
appeal is in time.
The Additional Stamp Reporter in his report dated
25th January, 2022 has taken note of the said orders
and has also given information that the appeal is in
time. We accept the same as of the report of the
Additional Stamp Reporter.
In view thereof, the application for condonation of
delay being CAN 1 of 2022 stands disposed of.
Re: SAT 4 of 2022
With
CAN 2 of 2022
We have heard the learned Counsel for the appellant
and the respondent No.1. The appeal is arising out of a
money decree passed in favour of the respondent No.1 for
the works claimed to have been executed by the
respondent No.1 for the School. The Headmaster is the
appellant before us. There is a delay of 280 days in filing
the First Appeal before the learned Additional District
Judge, Fast Track, 2nd Court, Diamond Harbour, 24-
Parganas (South).
The learned Appellate Court dismissed the
application under Section 5 of the Limitation Act on
consideration that the appellant has failed to substantiate
that there is a sufficient cause for not being able to
present the appeal within the period of limitation. In
coming to the finding, the Appellate Court had taken into
consideration that the appellant as a Headmaster cannot
plead ignorance of law and there was lack of diligence.
Sufficient cause has not been defined under Section 5 of
the Limitation Act. It has to be assessed on the basis of
the facts and circumstances of each case keeping in mind
that the dismissal of the said application may result in a
meritorious case being defeated by reason of delay. No
one is going to be benefited by the delay as a litigant runs
the peril of extinguishment of his remedy which may be
fatal to the litigant and when it concerns an educational
institution. In the event it is ultimately found that the
said money is not payable, it would save the exchequer of
the school. At the same time, we cannot lost sight of the
fact that the respondent No.1 is the successful litigant.
We have perused the evidence adduced before the
learned Appellate Court in connection with the application
under Section 5 of the Limitation Act.
The appellant is the Headmaster of the school. His
nature of activities he has explained and it cannot be said
that there has been any culpable negligence on his part in
failing to prefer the appeal within the period of limitation.
Approach of the Court should be justice oriented. The
Court needs to balance between the substantial justice
and technical considerations and in our view in the event
we do not allow the appeal on merits, serious prejudice
may be caused to the appellant.
However, having regard to the fact that the
respondent No.1 is a decree-holder, the appellant upon
depositing the entire decreetal dues in Title Execution
Case No.13 of 2020 to the learned Civil Judge (Junior
Division), 2nd Court, Diamond Harbour, South 24-
Parganas within one week from date, the learned Trial
Judge is requested to hear and dispose of the appeal on
merits. However, in default, the order dated 28th
February, 2020 shall revive and the decree shall
immediately be executable.
The learned Executing Court is requested to deposit
the entire decreetal amount in a suitable fixed deposit
account yielding highest return in a nationalized bank till
disposal of the appeal.
We make it clear that we have not gone into the merits
of the appeal.
There shall be an unconditional stay of operation of
the impugned order for one week and in the event of
compliance of our order, the impugned order shall stand
set aside and the Title Execution Case No.13 of 2020 shall
remain stayed till disposal of the appeal.
It would be open for the respondent No.1 to implead
the School and the Managing Committee of the said
School at the appellate stage, if so advised.
The learned Counsel for the appellant submits that
the appellant may be allowed to approach the Managing
Committee of the said School for the fund required to be
deposited before the Executing Court in terms of this
order.
With the aforesaid observation the second appeal
being SAT 4 of 2022 and the application being CAN 2 of
2022 stand disposed of.
All parties shall act on the server copies of this order
duly downloaded from the official website of this Court.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
