Calcutta High Court (Appellete Side)

Mitali Kar (Sarkar) vs The State Of West Bengal & Ors on 14 December, 2023

Author: Aniruddha Roy

Bench: Aniruddha Roy

Court No. 22             IN THE HIGH COURT AT CALCUTTA
14.12.2023                Constitutional Writ Jurisdiction
                                 Appellate Side
(Item No. 126)
(AB)                            W.P.A. 19320 of 2010
                                          +
                                    CAN 1 of 2017
                               (old No. 11263 of 2017)
                       (The application is not traceable in the file)
                                          +
                                    CAN 2 of 2023
                                          +
                                    CAN 3 of 2023

                               Mitali Kar (Sarkar)
                                       VS
                         The State of West Bengal & Ors.

                         Mr. Biswarup Biswas
                                           ...... for the petitioner
                         Mr. Ayan Banerjee
                         Ms. Debjani Sengupta
                                          ... for the State


                               In Re: CAN 3 of 2023


                          The last order dated December 5, 2023 speaks

                 for itself.

                          The      affidavit-in-opposition          affirmed    on

                 November 23, 2023 on behalf of respondent No. 3 in

CAN 3 of 2023 is taken on record.

This is an application for condonation of delay

for about nearly few days less than six years.

Power of condonation is no doubt the

discretion of the Court but it is also settled law that, it

should be kept in mind of the Court that, for

procedural lapses which was beyond the control of the

litigant, substantial justice shall not suffer for which

the petitioner has approached the Court of law. More

so, sitting in writ jurisdiction, this Court exercises

equitable jurisdiction also. To succeed or loose is the

matter of adjudication but if, the door of justice is

shut for the litigation merely on a procedural ground,

the substantive right to receive an adjudication of the

Court on the issue would suffer. The relevant

averments from the application for condonation of

delay are quoted below:

"5. That your petitioner states that she returned to her village with no objection and thereafter consulted with well wishers of the petitioner and ultimately she contacted with Ld. Advocate Sk. Morshed Ali on 06.06.2023 by Telephone and the learned advocate told to the petitioner to come at Calcutta High Court on 07.06.2023 and after enquiry the learned advocate came to know that the matter is dismissed for default on 18.8.2017. On the same day the learned advocate Sk. Morshed Ali told to his clerk to make an application for certified copy as ultimately your petitioner's advocate got the certified copy on 26.06.2023. Thereafter the learned advocate made a telephone to the petitioner and told that she has to file the restoration application along with Section 5 application. Thereafter the learned advocate prepared the restoration application and Section 5 application.

A Xerox copy of the certified copy is annexed and marked as Annexure "Z".

6. That the said failure on the part of the learned advocate for the petitioner to appear before His Lordship, the Hon'ble Justice Rajiv

Sharma, was an inadvertent laches on his part and due to bonafide mistake on the part of the learned advocate as also his clerk to notice the matter appearing in the list of His Lordship, the Hon'ble Justice Rajiv Sharma. In such circumstances it is humbly prayed that such omission on the part of the learned advocate for the petitioner to appear before His Lordship on 18.08.2017 passed by His Lordship the Hon'ble Justice Rajiv Sharma may be recalled by this Hon'ble Court and the matter may be restored in its original file.

7. Your petitioner submits that she had no knowledge about the dismissal of the said writ petition which your petitioner recently came to learn from reliable source and thereafter immediately took the necessary steps through her representative and came to learn that the matter was dismissed on 18.08.2017 for default.

8. That the petitioner have been given to understand that she has a good and arguable case and have a high chance of success, in the event the said writ petition filed on behalf of the petitioner being W.P.A. No. 19320 of 2010 is heard out by this Hon'ble Court. However, the said writ petition has been dismissed by His Lordship the Hon'ble Justice Rajiv Sharma on 18.08.2017 due to failure on the part of the learned counsel of the petitioner to appear before His Lordship. However such failure on the part of the learned advocate for the petitioner to appear before His Lordship, the Hon'ble Justice Rajiv Sharma was not a result of any malafide and deliberate laches on the part of the petitioner or her learned lawyer and as such, it is humbly prayed that such failure way he kindly condoned

and the order dated 18.08.2017 passed by His Lordship may be recalled, thereby restoring the said writ petition being No. W.P.A. No. 19320 of 2017 to its original file for the greater interest of justice.

9. That your petitioner states that here is no laches and/or negligence on the part of the petitioner to file the restoration application but due to unavoidable circumstances. Your petitioner could not file the restoration application within time and such the delay is caused that is 5 years 11 month 29 days to file the restoration application. The learned advocate Mrs. Maheswari Sharma given no objection on 03.05.2023 but the writ petition is dismissed for default on 18.08.2017. If the delay is not condoned and the writ petition is not heard on merit then your petitioner will suffer irreparable loss and injury and there is every chance of success in the writ petition."

The affidavit-in-opposition filed on behalf of

the respondent No. 3 shows specific and strong denial

made in the application for condonation of delay.

Mr. Biswarup Biswas, learned counsel

appearing for writ petitioner/applicant submits that,

it is the discretionary power of the Court to condone

the delay in the facts and circumstances of this case.

However, considering the fact that, in the event, delay

is not condoned and the writ petition is not restored

to its original file, the petitioner shall be left with no

scope for adjudication of her issue raised before this

Court through the writ petition. In such

circumstance, the Court is to take a lenient view more

on the basis of equity than on law and condone the

delay and restore the writ petition. In support, Mr.

Biswas placed reliance upon a judgment of the

Hon'ble Supreme Court In the matter of: N.

Balakrishnan V. M. Krishnamurty reported at AIR

1998 Supreme Court 3222.

Ms. Debjani Sengupta, learned junior advocate

led by Mr. Ayan Banerjee, learned State counsel has

opposed the application vehemently referring to the

averments made in the affidavit-in-opposition. She

submits that, there was no real explanation made in

the condonation application as required in law. She

submits that, even the discretionary power of the

Court shall have to be exercised within the frame

work of law. She submits that, the averments in the

application clearly shows that, the writ petitioner was

never a diligent litigant to pursue his cause before this

Court. She submits that, in absence of proper

averments as in the instant case, this application

should be dismissed.

After considering the submissions made on

behalf of the parties and upon considering the

materials on record and upon taking in the mind the

law settled on the issue as discussed above, at the

threshold this Court has also read the observation of

the Hon'ble Supreme Court In the matter of: N.

Balakrishnan (Supra). The relevant observation of

the Hon'ble Supreme Court are quoted below:

8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion.

Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.

11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential

anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].

13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.

14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court) within one month from this date."

While adjudicating an application for

condonation of delay as in the instant case, where the

delay is inordinate and could have been explained

better and since the explanations made in the

application appears to be not in smack of mala fide or

put forward as a dilatory strategy, the Court must

show utmost consideration to the suitor.

In view of the foregoing discussions and

reasons, the delay stands condoned subject to

payment of cost of Rs.50,000/- to the State Legal

Aid Services, West Bengal within a period of fifteen

days from today.