Calcutta High Court (Appellete Side)
652 2023 Nihar Ranjan Mukherjee vs 65 Smt. Chabi Sen & Anr on 5 July, 2023
Ct.
No. 05.07 C.O. 609 of 2018
652 2023 Nihar Ranjan Mukherjee
-Versus-
165 Smt. Chabi Sen & Anr.
akb
Mr. Sambhunath Dutta
Mr. Rahul Kumar Singh ...For the Petitioner
Mr. Jahar Lal Ray
Ms. Kavita Rani ...For the Opposite Parties
Re.: IA No. CAN 3 of 2023 (Section 5)
This is an application for condonation of delay in
filing the application for restoration of the revisionoal
application which was dismissed for default on 6th
September, 2018, when neither party appeared before the
Court.
It is stated, since before 2018 the original sole
petitioner was suffering from various diseases including
dementia, memory loss, neurological impairment,
alzheimer's disease etc. and the erstwhile learned Advocate
apparently did not take any step on the said date when the
matter appeared. Original petitioner ultimately died on
27.08.2021.
The present applicants are the three married
daughters and only legal heirs of the original sole petitioner,
who did not have any knowledge about existence of the
instant revisional application. In fact, the applicants came to
know about such application in the month of February 2023
while searching some old papers. The applicants after
gaining knowledge about status of the instant revisional
application contacted with their Lawyer and he took few
days time and prepared the application for restoration and
ultimately the instant application was made ready for filing
on 27th February 2023 and there is a delay of about 1036
days in preferring the instant application for restoration.
Learned Counsel for the petitioner further
contended that the Trial Court has already substituted the
legal heirs. In support of his prayer for condonation of delay
learned Counsel relied upon the decision in the case of Hiren
Singha Roy Vs. Howrah Improvement Trust & Ors., reported in
(2000) 9 SCC 309 and Ram Nath Sao @ Ram Nath Sahu & Ors. Vs.
Gobardhan Sao & Ors., reported in (2002) 3 SCC 195.
Learned Counsel appearing for the opposite parties
strongly opposed the application for condonation of delay in
filing the application for restoration of the revisional
application. His contention is in spite of knowledge
applicants intentionally did not take any step for restoration
and as such the prayer for restoration if allowed would cause
prejudice to the opposite parties. He further submits that the
decree has been executed on full satisfaction but only to
harass the opposite parties/decree holders, the present
application has been filed. Opposite party's specific case is
applicants are the daughters of deceased petitioner and
applicant No.3 Bidisha Chatterjee sworn affidavit on
behalf of her father in the erstwhile Revisional application
on 16.02.2018 and as such applicants cannot take the plea
that they were not aware of the pending Revisional
application. He further submits that it is settled law that the
petitioner is duty bound to explain properly for its delay in
filing the application for restoration. In this context he
placed reliance in the case of State (NCT of Delhi) Vs.
Ahmed Jaan, reported in (2008) 14 SCC 582.
In reply learned Counsel for the petitioner submits
that the applicant Nos. 1 and 2 being married daughters
residing elsewhere and were not aware about existence of the
Revisional application or subsequent dismissal of the
Revisional application. The applicant No. 3 though affirmed
the revisional application on behalf of her father but she
never kept any track as to the status of Revisional
application.
I have considered the submissions made by learned
Counsel for the respective parties. It is not in dispute in the
present context that the original petitioner was suffering
from various ailments including dementia, memory loss,
neurological impairment, alzheimer's etc. and ultimately he
passed away on 27th August, 2021 at the age of 88 years,
leaving behind his married daughter.
It is the specific case of the applicants that they
being the married daughters did not have knowledge about
the existence of the revisional application till February,
2023. Immediately after knowing about dismissal of the said
revisional application, they preferred the application for
restoration along the application for condonation of delay.
Thoush it is apparent that applicant No.3 sweared affidavit
on behalf of original petitioner on 16.02.2018 but she has
taken a plea that she did not keep track of the case from
her matrimonial home. It is now settled, while dealing
with issue of "Sufficient Cause " 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. In Ram Nath Sao @
Ramnath Sahu (supra) Appex Court held Acceptance of
explanation furnished should be the rule and refusal, an
exception, more so when no negligence or inaction or
want of bonfides can be imputed to the defaulting party
and where valuable right has not accrued to the other party.
From the judgments cited by the petitioner in the
case of State (NCT of Delhi) (Supra) it appears that the
Hon'ble Apex Court ultimately allowed the application
under Section 5 of the Limitation Act with an observation
that explanations offered were plausible and deserver to be
accepted. It was also observed in the Judgment that the
expression "sufficient cause" should therefore be
considered with pragmatism in a justice oriented approach
rather than the technical detection of sufficient cause for
explaining every days delay.
Having considered the facts and circumstance of
the case, I find if the prayer for condonation of delay in
filing the application is allowed the highest prejudice that
may cause to the opposite party herein, due to restoration,
would be that the Revisional Aplication will be disposed of
on merits after contested hearing and nothing more. In such
view of the matter the prayer for condonation of delay is
allowed subject to payment of cost of Rs. 2,500/-.
The petitioner is directed to pay such cost to the
opposite party positively within four weeks from date.
The application for condonation of delay, being IA
No. CAN 3 of 2023 is thus disposed of.
Re.: IA No. CAN 1 of 2023 (Restoration)
This is an application for restoration of the
revisional application, being C.O. 609 of 2018. In this
application it is also submitted that at the time of dismissal
of the instant revisional application the petitioner was not in
a position to take steps and in this context learned Counsel
for the petitioner has pointed out copy of some medical
papers to show that the original petitioner was not in a
position to come to Court or to put signature because of the
diseases. It is further submitted that the present applicants
did not know about the application till the month of February
2023 and immediately gaining knowledge they filed the
application for restoration.
Learned Counsel raised strong objection
contending that there is no merit in the application and only
to harass the opposite party herein the petitioners preferred
the application which is liable to be dismissed.
Having considered the facts and circumstance of
the case I am convinced with the grounds indicated in the
application in support of restoration of the revisional
application and as such prayer for restoration of the
application is allowed.
C.O. 609 od 1018 is restored to its original file and
number.
IA No. CAN 1 of 2023 is accordingly disposed of.
Let the matter appear in the list two weeks hence
for hearing the applications, being IA No. CAN 2 of 2023
and IA No. CAN 4 of 2023.
On the request of the learned Counsel appearing
for the opposite party, the petitioner is directed to serve a
fresh copy of the revisional application upon the learned
Counsel appearing for the opposite party within a week from
date.
( Ajoy Kumar Mukherjee, J.)
