Calcutta High Court (Appellete Side)

Sk. Md. Arif vs Roshan Ara Begum on 22 November, 2022

22.11.2022

Ct. no. 652 sb C.O. 2454 of 2019

Sk. Md. Arif Vs.

Roshan Ara Begum

Mr. Tapas Kumar Manna Ms. Anindita Majumder ...for the Petitioner

Mr. Santu Nandi Md. Faizan Yakub ...for the opposite party

This is an application under Article 227 of the

Constitution of India against the order dated 16.02.2019

passed by learned Judge, 5th Bench of Presidency Small

Causes Court, Kolkata in Misc. case no. 20 of 2013

under order IX Rule 13 of the Code of Civil Procedure

read with Section 5 of the Limitation Act.

The petitioner contended that the opposite party

has filed a suit for eviction being ejectment suit no. 66 of

2005 against the petitioner/defendant under the

provision of West Bengal Premises Tenancy Act. The said

suit was decreed ex parte by the court below on 12th

March, 2007. It is submitted by the petitioner that the

summons upon the defendant no.2/ petitioner herein

was never served. He further submits that the petitioner

got the knowledge of ex parte decree from a notice to

show cause received by the petitioner on or about

9.5.2012 in connection with amendment application for

amending schedule of the suit property. Immediately

after receiving the notice of the proposed amendment,

the petitioner contacted his advocate who informed that

the suit has already been decreed ex parte. Then the

petitioner entrusted him for taking necessary steps. Said

Advocate A.S. Mallick, instead of filing application for

setting aside exparte decree filed application asking for

copy of plaint. However the petitioner being dissatisfied,

with the said lawyer contacted with another advocate,

who filed application for setting aside the ex parte decree

under the provision of order IX rule 13.

Learned advocate for the petitioner submits that

the petitioner committed 146 days delay in filing the said

application which is counted from the date of his

knowledge. The petitioner also explained the reason for

delay in his application under Section 5 of the Limitation

Act.

Learned trial court upon hearing the argument for

both the parties, was pleased to reject the application

under Section 5 of the Limitation Act vide order

impugned dated 16.2.2019.

He further submits that the trial court has

misconstrued the legal concept of the application of

provision of Section 5 of the Limitation Act. One

Jahangir Alam had allegedly received the summon, who

is not known to the petitioner and as such the summon

of the suit was not served upon the petitioner. Moreover,

if the advocate failed to perform his duty, the litigant

must not suffer and in this context, he relied upon the

judgment reported in AIR 1981 SC 1400 (Rafiq and

another Vs. Munshilal and another). Accordingly, he

prayed for setting aside the impugned order in order to

give an opportunity to the petitioner to contest in the

said suit.

Learned counsel for the opposite party raised

vehement objection and contends that the suit was

decreed in the year 2007. Petitioner filed case under

Order IX rule 13 for setting aside the ex parte decree in

2013 that is after the expiry of about six years. He

further submits that the opposite party in his evidence

has admitted that he received the summon, though he

could not say the date. and he also admitted after

receiving the summon he did not go to any advocate.

Accordingly, there was an intentional laches on the part

of the defendant tenant in not filing the application for

setting aside the ex parte decree in time and as such

learned trial court rightly rejected the application for

condonation of delay filed by the defendant and the said

order does not call for any interference.

Considered the submissions made by both the

parties. It appears from the trial court's impugned order

that the trial court was pleased to held that materials

available in the record apparently suggests that the

defendant/petitioner was well aware about the suit and

delay cannot be condoned considering oral testimony of

PW1 wherein the petitioner herein has only pointed out

his finger upon the counsel Mr. A.S. Malik. He further

observed that even a delay of 146 days as submitted by

the petitioner/defendant, without assigning any specific

bona fide genuine ground, save and except pointing the

finger at the Advocate does not suffice without giving day

to day explanation of such delay.

It appears from the record that the defendant

tenant by filing a petition dated 10.12.2018 submitted

before the trial court that one jahangir Alam received the

summon but said jahangir Alam is not known to the

defendant petitioner and nothing transpires from the

evidence that Jahangir Alam is the representative of the

petitioner/defendant to receive summon on his behalf. It

is now well settled that "every days delay must be

explained" does not mean that a pedantic approach

should be made, why not every hours delay, every

seconds delay. The doctrine must be applied in a

rational common sense and pragmatic manner. In this

context reliance has been placed in Collector, Land

Acquisition Anantnag and another Vs. Mst Katji and

others reported in AIR 1987 SC 1353 which runs as

follows:

"3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant

satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice -- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

The expression "sufficient cause" should therefore

be considered with pragmatism in justice oriented

approach rather than the technical detection of

sufficient causes for explaining every days delay. The

court should decide the matters on merit unless the

case is hopelessly without merit.

Considering the aforesaid facts of the case and law,

I am of the view, if the defendant petitioner is given an

opportunity to contest by setting aside the impugned

order the highest prejudice that may cause to the

petitioner will be that the suit would be disposed of on

merit after contested hearing, and nothing more.