Gauhati High Court
Page No.# 1/5 vs Page No.# 2/5 on 17 March, 2021
Page No.# 1/5
GAHC010225142019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3163/2019
ON THE DEATH OF SMTI KANIKA DAS, HER LEGAL HEIRS SRI TAPAN DAS
AND 3 ORS
S/O- SRI BHIMA DAS, R/O- ULUBARI, LALMATI, NEAR RABIDAS
CREMATION GROUND, P.O. ULUBARI, P.S. PALTANBAZAR, GUWAHATI-
781007.
2: SMTI. MAMONI DAS
W/O- LATE PINTU DAS
R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
GUWAHATI- 781007.
3: SMTI. INDIRA DAS
W/O- SHRI BABUL DAS
R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
GUWAHATI- 781007.
4: SMTI. MANU DAS
W/O- LATE KHAGEN DAS
R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
GUWAHATI- 781007
VERSUS
Page No.# 2/5
SRI KAILASH BANIA AND 5 ORS.
S/O- LATE CHANDU BANIA, R/O- ULUBARI, LALMATI, NEAR RABIDAS
CREMATION GROUND, P.O. ULUBARI, P.S. PALTANBAZAR, GUWAHATI-
781007.
2:SHRI MADHAB BANIA
S/O- LATE CHANDU BANIA
R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
GUWAHATI- 781007.
3:SHRI PRADIP BANIA
S/O- LATE CHANDU BANIA
R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
GUWAHATI- 781007.
4:SHRI AJIT BANIA
S/O- LATE JAGYO BANIA @ LUNJA BANIA
R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
GUWAHATI- 781007.
5:SHRI JINTU BANIA
S/O- LATE JAGYO BANIA @ LUNJA BANIA
R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
GUWAHATI- 781007.
6:SHRI JINTU BANIA
S/O- LATE NANDU BANIA R/O- ULUBARI
LALMATI
NEAR RABIDAS CREMATION GROUND
P.O. ULUBARI
P.S. PALTANBAZAR
Page No.# 3/5
GUWAHATI- 781007
Advocate for the Petitioner : MR. B D DEKA
Advocate for the Respondent : MR. N ALAM
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 17-03-2021
Heard the learned counsel Mr. B.D. Deka, appearing for the applicants. Also heard Mr.
N. Alam, the learned counsel for the respondent nos. 1 to 6.
This is an application filed under Section 5 of the Limitation Act, 1963 praying for
condonation of 1518 days delay in filing the appeal.
The predecessor of the present applicants filed T.S. No. 1048 of 2006 in the Court of
the Munsiff No. 1 at Guwahati praying for a declaration of right, title and interest on a plot of
land and for permanent injunction. The suit was decreed by the judgment and decree dated
20.03.2014. The respondents being the defendants in the earlier suit prayed for the appeal
being Title Appeal No. 32 of 2014 and the appeal was allowed after setting aside the
judgment and decree dated 20.03.2014 passed in Title Suit No. 1048 of 2006.
In the meantime the original plaintiff died. Thereafter an appeal was filed in this Court
in the month of June, 2015. The serial number allotted to the appeal was 256356/2015,
which was reflected in the online portal of Gauhati High Court.
Thereafter the Lawyers representing the appellants informed them that the appeal
suffers from certain technical defects and those defects were required to be cured before the
appeal to be registered.
The engaged counsel was again entrusted to do the needful. The Lawyer informed
them that the defects were already cured and very soon the appeal would be registered. In
the meantime several months had gone by. Slowly there was an increasing communication
Page No.# 4/5
gap between the applicants and their Lawyer. However, the applicants engaged one pleaders
clerk in the month of June, 2019 to enquire into the matter. This time the clerk informed
them that the file was not traceable in the office of the High Court.
Thereafter in the month of June, 2019 their counsels returned them the brief of the
case. Thereafter on 23.07.2019 the applicants approached the Registrar, Gauhati High Court.
In the month of August, 2019 the applicants engaged new Lawyers and they advised
them to file a fresh appeal instead of looking for the old record. In this way the delay
occurred.
The respondents filed an objection. They have claimed that only because of negligent
on the part of the applicants the delay had occurred. The length of delay is not the matter to
be looked into. It is the acceptability of the explanation which matters. In paragraph 11 of the
judgment of N. Balakrishnan v. M. Krishnamurthy, reported in AIR 1998 SC 3222, the
Supreme Court has held as under:
"11. Rules 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 if 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
put 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."
The proof of sufficient cause is a condition precedent for exercising the discretionary
power under Section 5 of the Limitation Act. Unless malafidies are writ large on the conduct
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of the party generally as a normal rule, delay should be condoned. The expression "sufficient
cause" should be considered with pragmatism in justice oriented approach rather in technical
detection of sufficient cause for explaining every days delay. The true guide for a Court to
exercise the discretion under Section 5 of the Limitation Act is whether the appellant acted
with reasonable diligence in prosecuting the appeal. A litigant does not stand to benefit by
resorting to delay. In fact he runs a serious risk. It is a settled position of law that if the
refusal to condone the delay results in grave miscarriage of justice, it would be a ground to
condone the delay.
This Court finds that the applicants have showed sufficient cause for delay in filing the
appeal.
With the aforesaid observations this Court decides that in the case in hand the delay
deserves to be condoned for the ends of justice. Accordingly, the delay of 1518 days is
condoned.
The Interlocutory Application is disposed of.
JUDGE
Comparing Assistant
