Irfan Nizami vs Md. Naim
2023 Latest Caselaw 231 Cal

                                  FAT 140 of 2022
                                    Irfan Nizami
                                          v.
                                      Md. Naim
09.01.2023                              with
SL-08                              CAN 1 of 2022
Ct.32
(S.R.)       Mr. Debasis Sur
             Mr. Angshuman Patra                     ... for the appellant.

             Mr. Srinjay Das
             Mr. Arvind Kumar Singh             ... for the respondent.

The present appeal has been preferred challenging

the judgment and decree dated 29th April, 2015 passed by

the Learned Judge, City Civil Court, XIth Bench, Calcutta

in Title Suit No.1267 of 2003. In connection with the

appeal an application under Section 5 of the Limitation

Act being CAN 1 of 2022 has been preferred.

Mr. Sur, learned advocate appearing for the

appellant submits that the appellant's father, namely,

Nizamuddin Ahmed, expired on 13th February, 2020. Due

to such unfortunate event and as the appellant was also

suffering from serious ailments for a substantial period of

time, he was not in a position to take immediate steps for

filing the appeal. To recover from such ailments, the

appellant also incurred huge medical expenses and due to

extreme financial stringency, he was prevented from filing

the appeal in time. The period of delay also stands

intervened by a period lost due to the pandemic. Thus,

the delay in preferring the appeal was neither deliberate

nor intentional and in view thereof, the same may be

condoned and the appeal may be heard on merits. Let the

death certificate of the appellant's father, as produced, be

kept on record.

He further submits that the appellant has sincerely

contested the proceedings without any laches before the

learned Court below. The delay which has occurred is not

totally attributable to the appellant and from the

sequence of facts it cannot be said that the appellant has

not acted bonafide.

Per contra, Mr. Das, learned advocate appearing for

the respondent submits that the suit preferred by the

appellant was dismissed on contest in the month of April,

2015. Since then no steps were taken by the appellant to

prefer the present appeal till the year 2022. The

appellant's father expired on 13th February, 2020. There

is no explanation as to why the appellant did not take any

step for preferring the appeal till the death of his father.

The appellant has also failed to produce any document in

support of his contention that he was suffering from

serious ailments and had to incur huge medical expenses.

The appellant has simply slept over his rights. From the

sequence of facts it is explicit that the delay, which has

occurred, is attributable to the appellant and he has in

fact adopted dilatory tactics. His conduct, as such, does

not warrant exercise of any discretion in his favour.

Heard the learned advocates appearing for the

respective parties and considered the materials on record.

From the report of the Additional Stamp Reporter it

appears that even after excluding the period lost due to

the pandemic, there had been a delay of more than five

years in preferring the appeal. Such delay may be

condoned if sufficient cause is shown but in a case of

gross inaction there is no reason why the respondent

should be exposed to a time-barred appeal. The only

explanation that has been furnished for the delay is that

the appellant could not take appropriate steps for the

death of his father and for his own ailments. However, no

document has been produced by the appellant as regards

his ailments. The suit was dismissed in the month of

April, 2015 and the appellant's father expired on 13th

February, 2020. There is no explanation as to why the

appellant waited since 2015 till the death of his father to

prefer the present appeal. The appellant has thus been

thoroughly negligent and his conduct lacks bonafide. He

has adopted dilatory tactics and the inordinate delay,

which has occurred, is totally attributable to him.

For the reasons discussed above, we are not

inclined to exercise any discretion in favour of the

appellant and to condone the delay. The application for

condonation of delay being CAN 1 of 2022 is, accordingly,

rejected and the appeal being FAT 140 of 2022 is

dismissed on the ground of delay.

There shall, however, be no order as to costs.

Urgent certified photocopy of this order, if applied

for, be supplied as expeditiously as possible.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)