Gauhati High Court
Md. Ekram Ali vs Md. Sajid Khan And Anr on 19 January, 2021
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GAHC010070252019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1101/2019
MD. EKRAM ALI
S/O- MD. IMTIAJ ALI,
R/O- MULANG, BENGOLEE GAON, P.O.- LEDO, P.S. MARGHERITA, DIST.-
TINSUKIA, ASSAM, PIN- 786181.
VERSUS
MD. SAJID KHAN AND ANR
S/O- MD. IQBAL KHAN,
R/O- M.K.R. LINE, P.S. MARGHERITA, P.O. LEDO, DIST.- TINSUKIA, ASSAM,
PIN- 786181.
2:SRI BASU DEB
S/O- LATE PRABHAT CH. DEB
R/O- HAMUKJAN
P.O.- LEDO
P.S. MARGHERITA
DIST.- TINSUKIA
ASSAM
PIN- 786181
Advocate for the Petitioner : MR G P BHOWMIK
Advocate for the Respondent : MR. A C BURAGOHAIN (R2)
Linked Case :
MD EKRAM ALI
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VERSUS
MD SAJID KHAN AND ANR
------------
Advocate for :
Advocate for : appearing for MD SAJID KHAN AND ANR
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 19.01.2021
Heard Mr. D. Kalita, learned counsel for the applicant. Also heard Mr. H.
Buragohain, learned counsel for the opposite party.
2) This is an application under section 5 of the Limitation Act, 1963, whereby
the applicant has prayed for condoning the delay of 416 days beyond the period of limitation
in preferring the accompanying appeal under section 100 CPC.
3) The applicant has projected that the first appellate judgment was passed on
24.01.2017. The application for certified copy was made on 24.01.2017 and the certified copy
was ready for delivery on 03.02.2017. However, on 25.02.2017, the applicant had suffered a
fall and got back injury and also suffered disc displacement and he was bed-ridden. He
availed treatment in Ledo Health Unit of NF Railway and he could not move out to Guwahati
between 25.02.2017 to 24.02.2018 and in the last part of Marc, 2018, he could walk without
any support, as such, he came to Guwahati on 11.04.2018, collected information and
returned back and came back to Guwahati on 20.04.2018, met his counsel and he was asked
to bring some documents, but again he had suffered viral fever and could come to Guwahati
on 20.05.2018, but had to return to get more documents, which was ultimately provided on
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10.06.2018 and the connected appeal could only be filed on 22.06.2018 and that in the
process, there was a delay of 416 days.
4) The learned counsel for the opposite party has vehemently opposed this
application and it is submitted that the explanation is vague and obscure and no attempt has
been made to explain why he could not get the relevant documents through his engaged
counsel and why had he gone to meet his counsel at Guwahati without carrying all relevant
documents. It is submitted that any counsel could have told him over phone what documents
he should carry for filing the connected appeal. In support of his objection to condone the
delay, the learned counsel has referred to the case of Ramlal, Motilal and Chhotelal Vs. Rewa
Coalfields Ltd., (1962) 2 SCR 762.
5) In the case of Ramlal, Motilal and Chhotelal (supra) , it has been held that
the party filing the appeal should be called upon to explain its conduct during the whole
period of limitation prescribed. In the present case in hand, the applicant had explained the
cause for the whole period of delay. Therefore, the cited case does not help to support the
objection made by the learned counsel for the opposite party.
6) In the opinion of the Court, the expression "sufficient cause" should, be
considered with pragmatism in justice oriented approach rather than the technical detection
of sufficient cause for explaining every day's delay. In this regard, it would be relevant to
mention here that the applicant herein is the plaintiff in the suit. He claims to have purchased
the suit land vide sale deed no. 111/2000 and got his name mutated in the record of rights
vide order dated 19.04.2005. The respondent no.2 also claims to have purchased the suit
land vide sale deed no. 49/2005 dated 04.04.2005 from the respondent no.1. Therefore, the
applicant is seeking cancellation of the subsequent sale deed and other reliefs. The suit was
dismissed and the appeal filed by the applicant- appellant was also dismissed. The applicant
had also prayed for a decree of permanent injunction in the suit. Therefore, unless it was for
a pressing cause, there was no reason for the applicant to cause delay in approaching this
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Court. This application is supported with medical certificates and prescriptions, which lend
credence to the claim made by the applicant that he was indisposed owing to injuries
received upon falling and only after about a year of suffering when he could walk without
support he had taken steps to file the connected appeal. Some time was consumed in
obtaining documents and to furnish the same to his engaged counsel.
7) In the case of B. Madhuri Goud Vs. B. Damodar Reddy, (2012) 12 SCC 693 ,
is has been held that - " The expression "sufficient cause" used in section 5 of the Limitation
Act, 1963 and other statues is elastic enough to enable the Courts to apply the law in a
meaningful manner which serves the ends of justice. No hard- and- fast rule for delay has
been or can be laid down for deciding the applications for condonation of delay but over the
years courts have repeatedly observed that a liberal approach needs to be adopted in such
matters so that substantive rights of the parties are not defeated only on the ground of
delay." Therefore, the discretion to condone delay should not be based on length of delay but
on "sufficient cause" and satisfactory explanation.
8) In light of the discussions above, the Court is of the considered opinion that
in this case, ill health of the applicant can be accepted as good and sufficient reasons which
had prevented the applicant from filing the connected appeal on time. Accordingly, the delay
of 416 days is hereby condoned and this application stands allowed.
9) The Registry shall now register the accompanying appeal filed under filing sl.
no. RSA/8740/2018 dated 22.06.2018 and list the same for hearing under Order XLI Rule 11
CPC.
JUDGE
Comparing Assistant
