Calcutta High Court (Appellete Side)
Rabindra Nath Bera & Anr vs Radha Krishna Bera & Ors on 26 February, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI
C.A.N. 10365 of 2016
In
S.A. No.101 of 2012
RABINDRA NATH BERA & ANR.
... Appellant
- Versus-
RADHA KRISHNA BERA & ORS.
... Respondent
Mr. Saunak Bhattacharya, ... For the Appellant Mr. Mihir Kumar Das.
... For the opposite party no. 1(a)(i) Mr. Soumen Kumar Dutta, Mr. Indrajit Mandal ... For the opposite party no. 1(e).
Heard on :13.11.2018, 15.01.2019 & 19.02.2019 Judgment on : February 26, 2019.
-2-Sahidullah Munshi, J.:-
This is an application for substitution upon the death of Radha Krishna Bera, respondent no.1. The petitioner has filed this application with a comprehensive prayer for condonation of delay in filing the application for substitution and to set aside the abatement, if any. In the application, the appellant/petitioner has stated that one Nilanjana Nayak (Das) was engaged by the appellant/petitioner as his Advocate to conduct the second appeal. During the pendency of the second appeal Radha Krishna Bera, respondent no.1 died intestate leaving behind him surviving the legal heirs and heiresses and/or legal representatives whose particulars have been mentioned in paragraph 14 of this application. The said Radha Krishna Bera died intestate on 20th October, 2011. The present application was affirmed on 28th September, 2016 and was filed before this Court on 29th September, 2016.
According to the petitioner, the application has been filed with a period of delay of about 1655 days from the date after expiry of the statutory period of 90 days, that is, 20th October, 2011. The petitioner has averred the explanation in support of condonation of such delay in paragraph 10 to 13. To explain the delay the petitioner has stated that he tried to contact his learned Advocate Ms. Nilanjana Nayak (Das) time and again but he could not meet her. Ultimately, on 16th September, 2016, the petitioner when came to Court to meet his said learned Advocate, he could not contact her. However, incidentally, on the same -3- day, the petitioner came to learn that his learned Advocate was no more attending Court as the said learned Advocate left the profession and joined Government service. Finding no other alternative, the petitioner contacted a new learned Advocate on 18th September, 2016 and took steps for filing the substitution application which was, ultimately, filed on 29th September, 2016 and this is how the entire delay was caused. According to the petitioner, on 16th September, 2016, he came to learn that his learned Advocate left the profession and joined Government service and on 18th September, 2016, he contacted the present new Advocate and 10 days thereafter, he affirmed the affidavit in support of this application which was filed on 29.09.2016. The petitioner submitted that there is no fault on his part to take out the application for substitution in time. Therefore, the application should be allowed after condoning the unintentional delay and the abatement be set aside.
Mr. Dutta, learned Advocate appearing for the opposite party, has filed an affidavit-in-opposition controverting the averments made by the petitioner in his application. Mr. Dutta submitted that prayer for condonation of delay should not be allowed on two grounds, firstly, no diligence on the part of the petitioner has been shown that he was vigilant about his matter and secondly, no explanation is available from the application as to why he could not take such steps in time. Mr. Dutta has relied on the following decisions --4-
• Perumon Bhagvathi Devaswon, Perinadu Village - Vs. -
Bhargavi Amma (dead) by LRs. & Ors., reported in (2008) 8 SCC 321;
• Balwant Singh (dead) - Vs. - Jagdish Singh & Ors., reported in (2010) 8 SCC 685;
• Katari Suryanarayana & Ors. - Vs. - Koppisetti Subba Rao & Ors., reported in AIR 2009 SC 2907 and • Basawaraj & Anr. - Vs. - Special Land Acquisition Officer, reported in (2013) 14 SCC 81.
In Perumon Bhagvathy Devaswom (supra) the Hon'ble Apex Court held that the principles applicable in considering an application for setting aside abatement a Court should consider -
i. The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and type of the case. According to the Hon'ble Apex Court "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fide deliberate inaction or negligence on the part of the appellant. -5- ii. In considering the reasons for condonation of delay, the Courts are more liberal with reference to application for setting aside abatement, than other cases. While the Court will have to keep in view that the valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The Courts tend to set aside the abatement and decide the matter on merits, rather terminate the appeal on the ground of abatement.
iii. The decisive factor in condonation of delay is not the length of delay, but sufficient and satisfactory explanation.
iv. The extent or degree of leniency to be shown by the Court depends on the nature of application and in the facts and circumstance of the case. For example, Courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The Courts view applications relating to Lawyer's lapses more leniently than the application relating to litigant's lapses. The classic example is the difference in approach of Courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects.
v. Want of 'diligence' or inaction can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, Courts do not expect the appellant to be diligent. -6- Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years and appellant is not expected to visit the Court or his Lawyer every few weeks to ascertain the position, nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his Counsel about the listing of the appeal.
Learned Advocate appearing for the opposite party relied on paragraph 19 of the said decision which is set out below:
"19. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceases - on account of the abatement):
(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;
(ii) Neither the counsel for the deceased respondent nor the legal representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant;
(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim."
However, from paragraph 19 it appears that Court gives a hint to leniently consider the application for substitution after setting aside abatement. Therefore, -7- even if this decision is taken into account, this goes in favour of the petitioner but does not support the opposite party in any manner on the facts and circumstances of the present case.
The decision in Balwant Singh (supra) has been referred to by Mr. Dutta to argue the scope of condonation of delay and the interpretation of "sufficient cause". Relying on paragraphs 27, 32, 33 and 37 of the decision Mr. Dutta submitted that the petitioner has failed to give details about the cause for delay and he has failed to provide any sufficient cause for not making the application within time. But, Mr. Dutta has failed to take note of the last sub-paragraph of paragraph 37 where the Hon'ble Apex Court held that -
"Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, Courts do not expect the appellant to be diligent. Where an appeal is admitted by High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the Court or his Lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his Counsel about the listing of the appeal."
This decision does not help Mr. Dutta.
In the decision of Katari Suryanarayana & Ors. (supra) Mr. Dutta has relied on paragraph 12 and 13 and submitted that for want of diligence or if the party has shown negligence the prayer for condonation should not be allowed. In the said case the parties were neighbours as also co-sharers. Accordingly, the -8- Hon'ble Supreme Court held the death of the respondents must be within the knowledge of the appellant and in view of such peculiar circumstances the impugned order before the Supreme Court rejecting the prayer for condonation of delay of 2381 days was refused by dismissing the special leave petition.
The decision in the case of Basawaraj and Anr. (supra) is also on the question of limitation and paragraph 9 and 15 has been relied on by Mr. Dutta where the Hon'ble Apex Court has interpreted the expression "sufficient cause". It has been held in the said decision that "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned. The Supreme Court also held that whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible as has already been held in a previously decided case of Madanlal - Vs. - Shyamlal reported in (2002) 1 SCC 535. Therefore, this decision does not help Mr. Dutta's client rather helps the client of Mr. Bhattacharya.
Decisions of Court cannot be considered to be a statute rather every decision has its own facts.
The decisions cited by Mr. Dutta are based on its own facts. Prayer for condonation of delay must be considered on a given fact. In the given fact here, the petitioner has stated on oath that he came to the Court frequently; tried to contact his learned Advocate but in vain. It is undisputed that the learned -9- Advocate for the petitioner never informed his client about his leaving the profession after joining the Government job. Therefore, in such a situation, a client became helpless particularly in a second appeal which remains pending in Court for years together without progress and it is not possible for a client to keep contact with the Advocate very frequently unless on an emergent matter when the client is communicated by the Advocate for his presence and for taking steps. Here, it is evident from the record that the learned Advocate never made any contact with her client. From an order dated 13th October, 2015, it is evident that the learned Advocate even did not deposit the Talabana cost and written up notice forms for effecting service of notice of appeal upon the respondent nos.1 and 2. Had it been complied with at least it could have been ascertained whether the respondent no. 1 died or not and the orders passed by the Registry remained non-complied with since 2012. Therefore, it appears that the learned Advocate was totally careless about the orders passed subsequent to the admission of the appeal either because she left the profession or for some other reasons. No litigant will take such a risk of dismissal of the appeal for non-compliance of not paying Talabana cost of Rs.3.25/- and for filing written up notice forms. In my view, the learned Advocate who entered appearance on behalf of the appellant, was thoroughly negligent about the second appeal; she never contacted her client may be because of her joining the Government job. But for this fault of the learned Advocate, no litigant can be penalised. If the subsequent application is not allowed, the appeal itself will be abated and in my view, rejection of this application for substitution will tantamount to dismissal of the appeal. Therefore,
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I am of the view that for the fault of the Advocate concerned, the litigant should not suffer as has been decided by various judicial pronouncements time and again.
The delay caused is not intentional. In my view, the petitioner was prevented by 'sufficient cause' from taking steps to file application for condonation of delay. The fault was on the part of the learned Advocate, not the litigant. It is the settled law as decided by the Hon'ble Apex Court in the case of Rafiq & Anr. - Vs. Munshilal & Anr., reported in AIR 1981 SC 1400 that the litigant should not suffer for the fault on the part of the Advocate, I hold that in the present case, it would be apt to condone the delay which has been caused for the fault of the learned Advocate.
I, therefore, condone the delay in filing the application and also set aside abatement and consequently, the application is allowed.
However, there will be no costs in the facts and circumstances of the case. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)