Calcutta High Court (Appellete Side)

Amiya Biswas & Ors vs Madanlal Adhikary & Anr on 17 August, 2023

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL REVISIONAL JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                              C.O. 718 of 2019
                          Amiya Biswas & Ors.
                                   Vs
                        Madanlal Adhikary & Anr.

For the petitioners                   :       Mr. Buddhadev Ghosal
                                              Mr. Udayan Dutta


Heard on                              :       03.08.2023

Judgment on                           :       17.08.2023


Ajoy Kumar Mukherjee, J.

1. This is an application under Article 227 of the Constitution of India

preferred against order dated 11th January, 2019, passed in Misc. Appeal

No. 34 of 2018. Petitioner contended that the opposite party herein as

plaintiff filed a suit which was decreed exparte on 10.12.2007. The

petitioner herein being defendant in that suit, filed an application for setting

aside the exparte decree along with an application under section 5 of the

Limitation Act, 1963, seeking condonation of delay in filing the said

application for setting aside the exparte decree. Learned Trial Court refused

the prayer made by the petitioner seeking condonation of delay.

2. Being aggrieved by that order petitioner herein preferred aforesaid

Misc. Appeal No. 34 of 2018. The Appellate Court by the impugned

judgment dated 11.01.2019 affirmed the order dated 08.01.2018 passed by

the Trial Court.

3. In spite of service of notice the opposite party is not represented.

4. Mr. Ghosal learned counsel appearing on behalf of the petitioner

submits that the plaintiff/opposite party no.1 herein filed aforesaid suit

interalia for declaration and injunction being Title Suit No. 163 of 1993. The

said suit was decreed on 10.12.2007. The petitioner prayed for setting aside

the exparte decree along with an application under section 5 of the Act of

1963. The petitioner contended that he for the first time came to know about

exparte decree on 05.11.2009 and the prayer for setting aside the exparte

decree was filed on 25.11.2009. The petitioner's further case is that he has

given explanation for delay for the period from 10.12.2007 to 25.11.2009.

The explanation given in two fold way i.e. communication gap with Advocate

and secondly prolonged illness of petitioner's mother leading to her death,

which prevented him for attending the court for taking steps on the

stipulated date. Petitioner submits, unfortunately both the courts below

refused to accept the explanation given by the petitioner and were pleased to

reject the prayer for condonation of delay. The petitioner further submits

that his mother was suffering from demenesia and ultimately expired on

25.04.2009 after prolonged illness and he has also filed medical documents

in support of the same. Accordingly petitioner has contended that both the

courts below without any sufficient cause and without assigning any cogent

reason have rejected petitioner's explanation. Petitioner therefore has prayed

for setting aside the orders impugned and for condonation of delay in filing

application under order IX rule 13 C.P.C, so that such application can be

disposed of on merit.

5. I have gone through the order impugned and the application filed by

the petitioner in respect of his prayer for condonation of delay. In the said

application, the petitioner has contended that the petitioner regularly

attended in the advocate's chamber. In the month of November, 2007 their

advocate advised not to come to court regularly and when they will be

required to come, learned advocate will inform them. Petitioners further

contended that their mother became seriously ill and they have tried their

level best for treatment of their mother by different doctors but ultimately

she died on 25.04.2009. They further contended that due to death of their

mother the petitioners were shocked and on 05.11.2009 when one person of

opposite party's camp delivered a copy of judgment, the petitioner got

surprised and at once made contact with their advocate, who advised to file

the aforesaid application. He further stated that petitioner had no wilful

latches or negligence in attending the court proceedings.

6. It appears from order impugned that the court below recorded in the

order dated 03.03.2006 that the defendant is not taking steps since long.

Further the order dated 23.07.2007 reflects that the defendant is found

absent on repeated call. On 10.12.2007, the suit was disposed of exparte.

Learned court below quoted evidence of PW-1 and contended that the

witness stated that the mother of the petitioner became ill in 2003 to 2004

and there is no document to show that at the relevant point of time i.e. in

the year 2007 the mother of the defendant got seriously ill. Moreover the

petitioner has not examined the concerned doctor who has issued certificate

about illness of the mother of the petitioner and as such the doctor's

certificate has not been proved and the documentary evidence as filed by the

petitioner failed to satisfy the court that mother of the petitioner was ill at

the relevant point of time for which, the petitioner could not file the

application under order IX rule 13 for setting aside the exparte decree in

time.

7. Having considered the facts and circumstances of the case it appears

that both the courts below have swayed away by the petitioners' alleged past

conduct. It is accepted law that at the time of hearing of an application for

restoration of a case after setting aside the order of dismissal for default, the

court is required to examine the explanation given in the application for

restoration and if said application is found to be plausible and acceptable

then the court should restore the case, even if the petitioner was guilty of

latches on earlier occasions.

8. In Ram Nath Sao Vs. Gobardhan Sao and others reported in

(2002) 3 SCC 195 it was held by the Apex Court in paragraph 12,13

"12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable

injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

9. In the present case from the explanation given by the petitioner it

appears that it does not smack of malafide nor there is anything which

shows that such application was put forth as a part of dilatory strategy. In

fact even if there is some lapses on the part of the petitioner in not filing the

application in time but that alone should not shut the door against the

petitioner, as it would then completely non-suit him. In fact it has been held

time and again that in such cases the court should not proceed with a

tendency of finding fault with the cause shown and reject the petition by

slipshod order in over juvilation of dismissal drive. Acceptance of

explanation furnished should be the rule and refusal an exception. More so

when no intentional negligence or inaction or malafide can be imputed to

the defaulting party, [Re: Ramnath Shaw (supra)]. In fact the expression