Tripura High Court
Sri Ashwini Chandra Sarkar Alias ... vs Sri Krishna Kanta Debnath on 29 August, 2024
Page 1 of 9
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
CRP No.69 of 2024
CRP No.70 of 2024
Sri Ashwini Chandra Sarkar alias Ashwini Kumar Sarkar, son of late Purna
Chandra Sarkar, resident of Lankamura, Ward No.1, P.S. West Tripura,
District- West Tripura.
...... Petitioner-Defendant No.3
VERSUS
1. Sri Krishna Kanta Debnath, son of late Sashi Mohan Debnath
2. Sri Hari Mohan Debnath, son of late Sashi Mohan Debnath
3. Sri Sunil Debnath, son of late Sashi Mohan Debnath
4. Sri Rahul Debnath, son of late Sashi Mohan Debnath
5. Smt. Ashu Bala Debnath, daughter of late Sashi Mohan Debnath
6. Smt. Usha Debnath, daughter of late Sashi Mohan Debnath
7. Smt. Archana Debnath, daughter of late Sashi Mohon Debnath
8. Smt. Gouri Debnath, wife of late Bipul Debnath
9. Miss Binita Debnath (10 years), daughter of late Bipul Debnath
10. Mstr. Birat Debnath (3 years), daughter of late Bipul Debnath
11. Mstr. Biprajit Debnath, son of late Bipul Debnath.
All residents of Lankamura, Ward No.1, P.O. Lankamura, P.S. West Tripura,
District- West Tripura, Pin-799009.
Respondent Nos.9, 10 & 11 being minors are represented by their mother i.e.
the respondent No.8, being their natural guardian.
...... Respondent-petitioners
12. Smt. Saraswati Sarkar, wife of late Akhil Chandra Sarkar
13. Sri Subhash Ch. Sarkar, son of late Akhil Chandra Sarkar
Both are residents of Lankamura, Ward No.1, P.S. West Agartala, District-
West Tripura.
14. Smt. Milan Sarkar (Das), wife of late Anil Chandra Das, resident of
Ananga Nagar, P.S. Airport, District- West Tripura.
...... Pro-forma-respondents
For Petitioner(s) : Mrs. S. Deb(Gupta), Advocate,
Ms. Rumpa Dey, Advocate.
For Respondent(s) : Mr. P. Saha, Advocate.
Page 2 of 9
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Date of argument and delivery of Judgment & Order : 29th August, 2024
Whether fit for reporting : YES.
JUDGMENT & ORDER (ORAL)
Respondents have appeared on notice in both the civil revision
petitions. Heard Mrs. S. Deb(Gupta), learned counsel for the petitioner and
also heard Mr. P. Saha, learned counsel for the respondents. The same set of
respondents are there in both the civil revision petitions who are represented
by learned counsel Mr. P. Saha, in both the revision petitions.
[2] These petitions arise in common background. Since facts and
issues are identical and parties are also the same in both the revision
petitions, they have been heard together and are being disposed of by this
common judgment.
[3] By the impugned order dated 21.06.2024 passed in Civil
Misc.(Condonation) No.02 of 2022 arising out of T.S No.58 of 2015, the
learned Court of Civil Judge (Junior Division), Court No.1, West Tripura,
Agartala has condoned the delay of 2117 days in preferring the restoration
petition bearing Civil Misc.(Restoration) No.02 of 2022 to revive the
original Title Suit No.58 of 2015 which was dismissed for non-prosecution
on 27.02.2016 under Order IX, Rule 8 of CPC. By the order of the same
date, Civil Misc.(Restoration) No.02 of 2022 was allowed upon condonation
of the delay of 2117 days and Title Suit No.58 of 2015 was restored to its
original file under Order IX Rule 9 of CPC read with Section 151 of CPC.
Being aggrieved by both the orders, the defendant No.3 has preferred the
instant revision petitions.
[4] Mrs. S. Deb (Gupta), learned counsel for the petitioner-
defendant No.3 submits that mere perusal of the condonation application in
CRP No.70 of 2024 (Annexure-4) would reveal that there is no semblance of
any explanation or sufficient cause shown by the plaintiffs for condonation
of such a huge and inordinate delay of 2117 days in preferring the
restoration petition. The learned trial Court has not applied its mind to the
purported grounds taken in the delay condonation petition in a case where
the delay was more than two thousand days. Delay has been condoned by the
learned court being persuaded by the contention of the plaintiffs that the suit
was dismissed on account of lapse of the petitioners‟ advocate and there was
no mala fide on their part in approaching the Court after such a delay. It is
submitted that learned trial court has allowed the delay condonation petition
and consequent restoration of the title suit in teeth of the guiding principles
laid down by the Apex Court in case of B. Madhuri Goud versus B.
Damodar Reddy, reported in (2012) 12 SCC 693. It is submitted that
negligence of the plaintiffs is writ large not only from the quantum of delay
but absence of any plausible explanation for its condonation in their
application also. Therefore, the impugned order deserves to be set aside to
prevent miscarriage of justice.
[5] Mr. P. Saha, learned counsel for the respondents has supported
the impugned order. He relies upon the contents of the delay condonation
petition. He submits that proceedings of the suit were going on smoothly
from 16.07.2015 to 05.02.2016 on which dates several issues were framed
and the next date was fixed on 20.02.2016 for examination-in-chief of the
plaintiffs. However, it was posted on 27.02.2016 for their examination-in-
chief which the plaintiffs were completely unaware of. Resultantly, no steps
were taken on behalf of the plaintiffs by the guardian of all the legal heirs
who used to regularly visit the Court and meet his appointed lawyer with the
hope and trust that they are properly represented. Despite asking the lawyers
as to the status of the case, he was assured not to worry as the proceedings
were going on smoothly. Between 08.07.2015 to 18.12.2021, the said
guardian, Sri Krishna Kanta Debnath used to visit the lawyer‟s chamber in
the Court and paid fees to his lawyers with the hope that they would win the
case. Even during the pandemic, he used to visit the Court. He also requested
his lawyer to return the case file to him so that he could appoint another
lawyer but he was assured that they would win the case within a short
period. Between 14.03.2019 to 15.07.2019, he could not meet his lawyer as
his brother Bipul Debnath was murdered. On 15.12.2021, he again met the
advocate and requested him to hand over the case file since 2015 till 2021 no
fruitful result had come despite payment of the lawyer‟s fees. He was,
however, threatened by the concerned lawyer and had to leave the chamber
in a crying position. Ultimately, the file was handed over to him and he
found that there was no written statement by defendant No.3 in the said file.
[6] He, thereafter, met his present lawyer on 17.12.2021. The
learned lawyer found that the case had been disposed of for non-prosecution
on 27.02.2016 itself as the plaintiffs were absent and no steps were being
taken. He again visited the office of his previous counsel on 21.12.2021. He
was aghast to know that his earlier two lawyers up-to November, 2021
despite taking their fees, had not taken any diligent steps. He advised his
present lawyer also to take legal action against the earlier two lawyers but he
was told that no purpose would be served by proceeding against the lawyers.
He was advised by the present lawyer to approach the Court for restoration
of the case stating all real facts along with condonation petition. For the
period 14.03.2020 till October, 2021 limitation would not be counted in
terms of the order of the Apex Court due to Covid. The delay counted in the
right manner would be from 27.03.2016 to 13.03.2020 which is 1553 days.
With this explanation, plaintiffs filed the delay condonation petition on
24.01.2022. Thus, according to him, the delay is 5 years 9 months and 16
days only. The learned trial Court considered the explanation and found that
plaintiffs were not at lapse but it was the fault of the advocate who was
representing them which led to dismissal of the suit in default and also delay
in seeking restoration. He submitted that plaintiffs are illiterate and ignorant
persons and they could not understand the technicalities of the legal
proceedings before a court of law. They would be highly prejudiced if the
impugned order is interfered and the suit is not restored.
[7] I have considered the submissions of learned counsel for the
parties and gone through the two impugned orders of the same date by which
delay of approximately 2117 days (which is 1553 days as per the plaintiffs
before Covid started) has been condoned and consequently the suit has been
restored. I have also perused the relevant paragraphs of the delay
condonation petition placed by learned counsel for both the parties. Needless
to say, the delay is not only huge and inordinate but has not been explained.
The learned trial Court while dealing with the application for condonation of
delay has simply held that it was the lapse of the plaintiffs‟ advocate that he
could not file the restoration petition in time. As it appears from the
statement of petitioners, examination-in-chief of the plaintiffs was scheduled
on 20.02.2016 and plaintiffs were supposed to be present on that date. Even
if it was adjourned for some reason to 27.02.2016, it is not acceptable that
since 27.02.2016 plaintiffs would keep visiting the Court premises and the
chamber of his lawyers without coming to know of the actual status of the
case for more than 5 years till Covid intervened. The explanation furnished
by the plaintiffs in so many paragraphs of the delay condonation petition
fails to provide sufficient cause for such a huge delay even up-to 15.03.2020
when Covid intervened and limitations were not to be counted as per the
order of the Supreme Court in Suo moto Writ Petition (Civil) No.03 of
2020. The learned Trial Court has misdirected itself by looking for absence
of any deliberate act or mala fides on the part of the litigant in exercising its
discretion under Section 5 of the Limitation Act when the plaintiffs were
required to establish sufficient cause and offer proper explanation in failing
to approach the Court for restoration of the Title Suit No.58 of 2015 for
more than 5 years 9 months even excluding the Covid delay.
[8] The principles have been reiterated by the Apex Court in
matters of condonation of delay in case of Pathapati Subba Reddy (Died) by
L.Rs. and Others versus Special Deputy Collector (LA). The opinion of the
Apex Court in relevant paragraphs is quoted hereunder:
7. The law of limitation is founded on public policy. It is enshrined in the legal
maxim "interest reipublicae ut sit finis litium" i.e. it is for the general welfare that
a period of limitation be put to litigation. The object is to put an end to every legal
remedy and to have a fixed period of life for every litigation as it is futile to keep
any litigation or dispute pending indefinitely. Even public policy requires that
there should be an end to the litigation otherwise it would be a dichotomy if the
litigation is made immortal vis-a-vis the litigating parties i.e. human beings, who
are mortals.
8. The courts have always treated the statutes of limitation and prescription as
statutes of peace and repose. They envisage that a right not exercised or the
remedy not availed for a long time ceases to exist. This is one way of putting to an
end to a litigation by barring the remedy rather than the right with the passage of
time.
9. Section 3 of the Limitation Act in no uncertain terms lays down that no suit,
appeal or application instituted, preferred or made after the period prescribed shall
be entertained rather dismissed even though limitation has not been set up as a
defence subject to the exceptions contained in Sections 4 to 24 (inclusive) of the
Limitation Act.
10. Section 3(1) of the Limitation Act, for the sake of convenience, is reproduced
hereinbelow:
"3. Bar of limitation.- (1) Subject to the provisions contained in sections 4 to
24 (inclusive), every suit instituted, appeal preferred, and application made
after the prescribed period shall be dismissed, although limitation has not
been set up as a defence."
12. In view of the above provision, the appeal which is preferred after the expiry of
the limitation is liable to be dismissed. The use of the word „shall‟ in the aforesaid
provision connotes that the dismissal is mandatory subject to the exceptions.
Section 3 of the Act is peremptory and had to be given effect to even though no
objection regarding limitation is taken by the other side or referred to in the
pleadings. In other words, it casts an obligation upon the court to dismiss an appeal
which is presented beyond limitation. This is the general law of limitation. The
exceptions are carved out under Sections 4 to 24 (inclusive) of the Limitation Act
but we are concerned only with the exception contained in Section 5 which
empowers the courts to admit an appeal even if it is preferred after the prescribed
period provided the proposed appellant gives „sufficient cause‟ for not preferring
the appeal within the period prescribed. In other words, the courts are conferred
with discretionary powers to admit an appeal even after the expiry of the
prescribed period provided the proposed appellant is able to establish „sufficient
cause‟ for not filing it within time. The said power to condone the delay or to
admit the appeal preferred after the expiry of time is discretionary in nature and
may not be exercised even if sufficient cause is shown based upon host of other
factors such as negligence, failure to exercise due diligence etc.
14. It may also be important to point out that though on one hand, Section 5 of the
Limitation Act is to be construed liberally, but on the other hand, Section 3 of the
Limitation Act, being a substantive law of mandatory nature has to be interpreted
in a strict sense. In Bhag Mal alias Ram Bux v. Munshi (Dead) by LRs.1, it has
been observed that different provisions of Limitation Act may require different
construction, as for example, the court exercises its power in a given case liberally
in condoning the delay in filing the appeal under Section 5 of the Limitation Act,
however, the same may not be true while construing Section 3 of the Limitation
Act. It, therefore, follows that though liberal interpretation has to be given in
construing Section 5 of the Limitation Act but not in applying Section 3 of the
Limitation Act, which has to be construed strictly.
18. This Court as far back in 1962 in the case of Ramlal, Motilal And Chhotelal v.
Rewa Coalfields Ltd.3 has emphasized that even after sufficient cause has been
shown by a party for not filing an appeal within time, the said party is not entitled
to the condonation of delay as excusing the delay is the discretionary jurisdiction
vested with the court. The court, despite establishment of a „sufficient cause‟ for
various reasons, may refuse to condone the delay depending upon the bona fides of
the party.
19. In Maqbul Ahmad v. Onkar Pratap Narain Singh4, it had been held that the
court cannot grant an exemption from limitation on equitable consideration or on
the ground of hardship. The court has time and again repeated that when
mandatory provision is not complied with and delay is not properly, satisfactorily
and convincingly explained, it ought not to condone the delay on sympathetic
grounds alone.
21. In Lanka Venkateswarlu v. State of Andhra Pradesh6, where the High Court,
despite unsatisfactory explanation for the delay of 3703 days, had allowed the
applications for condonation of delay, this Court held that the High Court failed to
exercise its discretion in a reasonable and objective manner. High Court should
have exercised the discretion in a systematic and an informed manner. The liberal
approach in considering sufficiency of cause for delay should not be allowed to
override substantial law of limitation. The Court observed that the concepts such
as „liberal approach‟, „justice-oriented approach‟ and „substantial justice‟ cannot
be employed to jettison the substantial law of limitation.
22. It has also been settled vide State of Jharkhand v. Ashok Kumar Chokhani7,
that the merits of the case cannot be considered while dealing with the application
for condonation of delay in filing the appeal.
26. On a harmonious consideration of the provisions of the law, as aforesaid, and
the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to
litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time
must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as
Section 3 has to be construed in a strict sense whereas Section 5 has to be
construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-
oriented approach or cause of substantial justice may be kept in mind but the same
cannot be used to defeat the substantial law of limitation contained in Section 3 of
the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient
cause had been explained, but that exercise of power is discretionary in nature and
may not be exercised even if sufficient cause is established for various factors such
as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that
others are also entitled to the same benefit if the court is not satisfied with the
cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay;
and
(viii) Delay condonation application has to be decided on the parameters laid down
for condoning the delay and condoning the delay for the reason that the conditions
have been imposed, tantamounts to disregarding the statutory provision.
27. It is in the light of the above legal position that now we have to test whether
the inordinate delay in filing the proposed appeal ought to be condoned or not in
this case."
[9] In the present case, the condonation for the delay of more than
1500 days, even as per the petitioner, in such a perfunctory manner without
any cogent explanation has not been exercised in a reasonable and objective
manner by the learned trial Court. The learned Trial Court has, therefore,
committed serious error in exercise of the jurisdiction vested in him under
Section 5 of the Limitation Act, 1963.
[10] In view of the aforesaid facts and circumstances and for the
above reasons, the impugned orders of condonation of delay and
consequential restoration of the suit cannot be allowed to stand as it would
lead to miscarriage of justice. Accordingly, the impugned orders dated
21.06.2024 passed by the learned Civil Judge (Junior Division), Court No.1,
Agartala, West Tripura in Civil Misc.(Condonation) No.02 of 2022 and Civil
Misc.(Restoration) No.02 of 2022 both arising out of T.S. 58 of 2015 are set
aside.
[11] Accordingly, both the civil revision petitions are allowed and
disposed of.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH) CJ
DIPESH DEB Date: 2024.09.06 19:05:21
