Tripura High Court
Sri Bishnu Debbarma vs Sri Dhiresh Lodh on 1 March, 2024
Page 1 of 5
HIGH COURT OF TRIPURA
AGARTALA
CRP No.05 of 2024
Sri Bishnu Debbarma
........................ Petitioner(s).
Versus
Sri Dhiresh Lodh
........................ Respondent(s).
For Petitioner(s) : Mr. D.C. Roy, Advocate.
For Respondent(s) : Mr. A. Sengupta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
=O=R=D=E=R=
01/03/2024
Heard Mr. D.C. Roy, learned counsel for the petitioner and Mr. A.
Sengupta, learned counsel for the respondent.
[2] By the impugned order dated 08.12.2023 passed in Civil Misc.
(Condo) No.46 of 2022, the learned District Judge, West Tripura, Agartala has
dismissed the application for condonation of delay of 256 days in filing the
restoration petition against the order of dismissal of T.A. No.65 of 2016 dated
20.09.2021 on the ground that despite excluding the period of COVID delays
from 15.03. 2020 to 28.02.2022 as per order passed by Apex Court in Suo Moto
Writ Petition (C) No.3 of 2020, petitioner has not been able to effectively explain
the delay between 01.03.2022 to 10.11.2022. As such, the learned Court did not
find any sufficient cause to condone the delay for restoration of the appeal.
[3] It appears from perusal of the documents which are the application
under Section 5 of the Limitation Act, 1963 bearing Misc. (condonation) No.46
of 2022 in T.A. No.65 of 2016 placed on record by learned
counsel for the petitioner pursuant to the previous order dated 23.02.2024 that
having lost in Title Suit No.35 of 2015 and T.S(CC) No.04 of 2015 passed by the
learned Civil Judge, Sr. Div., Court No.1, Agartala, West Tripura, petitioner
preferred an appeal under Section 96 of the Civil Procedure Code read with
Section 151 thereof before the Court of the learned District Judge, West Tripura,
Agartala.
[4] According to the petitioner the last appearance of the
appellant/petitioner herein was recorded on 11.12.2020 and whereafter due to the
illness of the learned advocate representing him, the case was not properly
represented till it was dismissed on 20.09.2021. Petitioner has also alleged that
the said counsel was mostly out of the State in connection with his treatment and
rehabilitation. He had not informed the appellant regarding non-prosecution of
the appeal and leading to dismissal. Petitioner all of a sudden received a show
cause notice from the Court of the Civil Judge, Sr. Division, Court No.1, West
Tripura Agartala in connection with Execution (T) No.05 of 2022 arising out of
T.S. (CC) No.4 of 2015 to appear on 18.07.2022. On approaching his erstwhile
counsel who has representing him in appeal, it transpired that he has been out of
station in connection with his treatment and rehabilitation for de-addiction.
Thereafter, the petitioner met another advocate who advised him to appear in the
executing Court and also preferred an appeal before the High Court. Accordingly,
a counsel was engaged to represent him before the executing Court. The learned
Court had also allowed the petition and fixed the next date. All of a sudden on
04.11.2022 in the evening the petitioner visited the chamber of counsel who
found that his appeal was already dismissed on 20.09.2021 due to non
prosecution as his appointed counsel did not appear. Petitioner also found that the
counsel appointed by him to represent the execution case also did not appear on
15.09.2022 before the learned executing Court. Therefore, the learned executing
Court closed the opportunity to submit written statement and fixed the next date
on 16.11.2022. Thereafter, a certified copy of the order dated 20.09.2021,
whereby his appeal was dismissed, was obtained and another counsel was
appointed to prepare the restoration petition along with the application for
condonation of delay. Ultimately the restoration application was filed on
11.11.2022. Petitioner had, therefore, been able to show sufficient cause for
condonation of the delay. Though ordinarily the delay would be 364 days from
the date of dismissal of the appeal due to non prosecution but discounting the
period of COVID delays, it comes to 256 days. Learned counsel for the petitioner
submits that the learned Court has not appreciated the explanation furnished by
the petitioner for restoration of the appeal. If the delay is not condoned, the
appeal will not be restored and the appellant/petitioner would suffer irreparably.
[5] The respondent has also filed a reply which has been placed on
record by learned counsel for the petitioner along with a delay condonation
petition pursuant to the previous order. The respondent took a plea that the
explanation furnished by the appellant was not proper. The appellant was not
vigilant to proceed with the appeal despite several opportunities. Therefore, the
appeal was dismissed for non prosecution. He has made some unfounded
allegations against the appointed lawyer when it was his duty to properly pursue
his appeal and to appear before the appellate court in every date personally with
his appointed advocate. Learned counsel for the respondents submits that the
petitioner has therefore not been able to show sufficient cause for condonation of
delay.
[6] I have considered the submissions of the learned counsel for the
parties and taken note of the materials placed from record. I have also taken note
of the explanation furnished by the appellant/petitioner before the learned
appellate Court for restoration of the appeal. The appeal preferred by the
petitioner against the impugned judgment and decree dated 19.09.2016 was
dismissed during the period of COVID on 20.09.2021. Petitioner had engaged a
counsel who remained absent on the fateful day. The petitioner has taken a plea
that he was not well conversant with the proceedings of a Court of law and
therefore had trusted his lawyer who, however, was not able to properly
prosecute the appeal since he had gone for his treatment and rehabilitation from
de-addiction. Apparently, the petitioner came to know of the dismissal of the
appeal only after receiving notice in the execution case. Thereafter, he has
enquired about the status of the appeal and preferred the restoration application
on 11.11.2022 which occasioned a delay of 256 days even after discounting the
period of COVID delays upto 20.02.2022.
[7] It appears from the order dated 10.01.2022 passed in Misc.
Application No.21 of 2022 and Misc. Application No.665 of 2021 in Suo Motu
Writ Petition (C) No.3 of 2020 along with other Misc. Applications by the Apex
Court that the order dated 23rd March, 2020 was restored in continuation of the
subsequent orders dated 08.03.2021, 27.04.2021 & 23.09.2021 and it was
directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for
the purposes of limitation as may be prescribed under any general or special laws
in respect of all judicial or quasi-judicial proceedings. Consequently, the balance
period of limitation remaining as on 03.10.2021, if any, shall become available
with effect from 01.03.2022. The Apex Court also directed that in cases where
the limitation would have expired during the period between 15.03.2020 till
28.02.2022, notwithstanding the actual balance period of limitation remaining, all
parsons shall have a limitation period of 90 days from 01.03.2022. In the event,
the actual balance period of limitation remaining, with effect from 01.03.2022 is
greater than 90 days, that longer period shall apply. As such, the period of 90
days from 1st March, 2022 had to be further discounted in calculating the total
period of delay in preferring the restoration application.
[8] As such, on consideration of the explanation furnished and the legal
position in view of the order passed by the Apex Court in Suo Motu Writ Petition
(C) No.3 of 2020, this Court is satisfied that the appellant/petitioner herein had
been able to make out sufficient cause for condonation of delay in seeking
restoration of the appeal. The learned Court has committed an error in rejecting
the application for condonation of delay despite sufficient cause shown by the
appellant. Accordingly, this petition is allowed. The delay in seeking restoration
of the appeal is condoned. The learned appellate Court would proceed to hear the
appeal on merits in a time bound manner. Pending application(s), if any, also
stands disposed of.
(APARESH KUMAR SINGH), CJ
Munna S MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.03.05 15:33:48 +05'30'
