Calcutta High Court (Appellete Side)
Smt. Sipra Ghoshal & Anr vs Sri Gourchand Poddar on 28 August, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1
(07)
28.08.2017
(PA)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
CAN 10814 of 2014
in
SAT 488 of 2014
Smt. Sipra Ghoshal & Anr.
Vs.
Sri Gourchand Poddar
Mr. S. P. Roychowdhury,
Mr. Apurba Krishna Das,
Mr. Kallol Kr. Maity
... for the petitioner
Mr. Debasish Roy
Mr. Srinjay Sengupta
Mr. S. Roy
... for the opposite party
In this application under Section 5 of the Limitation Act
the petitioners have prayed for, condonation of delay in
preferring the second appeal against the judgment and decree
passed by the learned Additional District Judge, 16th Court,
Alipur, District 24 Paraganas, (South) in Ejectment Appeal
No.22 of 2011.
2
Shortly stated, the facts giving rise to this
application are that the petitioners as the landlords filed the
suit, being Ejectment Suit No.288 of 2004, before the learned
Civil Judge, Junior Division, 1st Court, Alipur, South 24
Paraganas, claiming a decree for his eviction against the
respondent and recovery of possession of the suit property.
The eviction suit was filed under the provisions of the West Bengal Tenancy Act, 1997 (in short "the Act of 1997"). On January 15, 2008 the learned trial Judge heard the suit ex parte and by the judgment and decree dated February 19, 2008 directed the opposite party to vacate and hand over possession of the suit property to the petitoners. Thereafter, the petitioners put the said dated February 19, 2008 into execution and as per the order of the learned executing Court the court bailiff delivered vacant and peaceful possession of the suit property to the petitioners. Thereafter, challenging the said judgment and decree dated February 9, 2008 passed by the learned trial Judge the respondent filed an appeal under Section 43 of the Act of 1997, being O.A (P) No.1440 of 2008(LRTT), before the West Bengal Land Reforms and Tenancy Tribunal (hereinafter referred to as "the learned Tribunal"). After receiving the summons, the petitioners entered appearance in the said appeal before the learned 3 Tribunal. On July 02, 2009 the appeal was fixed for hearing when the petitioners were present before the learned Tribunal but the respondent did not appear and the learned tribunal dismissed the said appeal. On December 03, 2009 the respondent filed an application, being Misc. Case No.743 of 2009 (LRTT), before the learned Tribunal for restoration of his aforementioned appeal by recalling the order dated July 02, 2009. By an ex parte order dated January 13, 2010 the learned Tribunal allowed the said Misc. Case No.743 of 2009 (LRTT) and recalled its earlier order dated July 02, 2009. Subsequently, by an order dated November 01, 2010 the learned Tribunal observed that in view of the amendment of the provisions in the Act of 1997, it ceased to have jurisdiction to proceed with the said appeal and transferred of the said appeal, together with all its records to the learned District Judge, South 24 Paraganas. After transmission of the records of the said appeal to the District Judge, South 24 Paraganas, the appeal was renumbered as the Ejectment Appeal No.22 of 2011 and the learned District Judge, South 24 Paraganas, transferred the same to the learned Additional District Judge, 16th Court, Alipore.
By an ex-parte judgment and decree dated December 21, 2011 the learned appellate Court below set aside the judgment 4 and decree for eviction dated February 09, 2008 passed by learned trial Judge in the ejectment suit. In the said judgment dated December 21, 2011 the learned appellate Court below observed that the summons of the appeal had been served upon the respondents, that is, the present petitioners and they entered appearance by filing vokalatnama. Thereafter, the respondent filed an application under Section 144 of the Code of Civil Procedure (in short "the Code") before the learned executing Court for restitution of his possession in the suit property and by an ex parte dated April 25, 2012 the learned executing Court allowed the said prayer of the respondent. The respondent further filed an execution application, before the learned executing Court for executing the said decree dated December 21, 2011 passed by the learned appellate Court below. He also filed an application for police help for execution of the said decree passed by the learned appellate Court below which was allowed by the learned executing Court and on July 18, 2014 the court bailiff dispossessed the petitioners from the suit property in presence of the police officers.
It is the case of the petitioners in this application that they were never served with the copy of the application filed by the respondents before the learned Tribunal for recalling of the said order dated July 02, 2009 and the learned Tribunal 5 restored the said appeal of the respondent, being O.A (P) No.1440 of 2008(LRTT) without serving any notice to them and even the said appeal was transferred to the learned District Judge, South 24-Paraganas without any notice to them. The petitioners have categorically claimed that even the learned District Judge, South 24-Parganas, transferred the said appeal, Title Appeal No.22 of 2011 to the learned appellate Court below without any notice to them. According to the petitioners, since they received no notice or summons from the Court of the learned appellate Court below in the said Title Appeal No.22 of 2011 they had no scope to engage any advocate to contest the said appeal on their behalf. Therefore, it was strenuously urged by the petitioners that the observations made by the learned appellate Court below in the said judgment dated December 21, 2011 that summons had been served upon them and they entered appearance in the appeal by filing vokalatnama is perverse. The petitioners have further alleged that even they were not served with the application filed by the respondent under Section 144 of the Code and learned executing Court passed the ex parte order dated April 25, 2012. It is the specific case of the petitioners that it was only after they were dispossessed from the suit property by the court bailiff on July 18, 2014, they discovered 6 the factum of passing of all the aforesaid orders passed behind their back. Therefore, the petitioners filed an application under Section 151 of the Code before the learned executing Court, for recalling of the all the orders passed on and from January 20, 2012 and restoration of their possession in the suit property, which was rejected on September 05, 2014. Thereafter, on October 01, 2014 the petitioner consulted the present advocate, who told them to meet him after the reopening of the Court, after Puja Vacation. On November 03, 2014 the petitioners met their present advocate who advised them to file second appeal against the judgment and decree dated December 21, 2011 passed by the learned appellate Court below. On November 07, 2014 the petitioners engaged their present advocate who filed the second appeal on November 12, 2014. The present application was also filed on November 12, 2014. In these facts, the petitioners have prayed for condonation of 952 days delay in preferring the second appeal against the judgment and decree passed by the learned appellate Court below.
In view of the submission made on behalf of the petitioners as well as the respondent, on April 25, 2016 this Court directed the department to bring the records of both the Ejectment Appeal No.22 of 2011 and the Ejectment Suit No.28 7 of 2004 through special messenger, at the cost of the petitioners. Thereafter, the records of both Ejectment Appeal No.22 of 2011 and Ejectment Suit No.28 of 2004 were brought before this Court. The respondent has filed affidavit in opposition to this application and the petitioner has also filed his affidavit in reply. The parties also inspected the lower Courts' records.
Mr. S. P. Roychowdhury, learned Senior Advocate appearing for the petitioners contended that in his affidavit in opposition, the respondent has not disclosed any document to substantiate that he had served either the copy of the application, Misc. Case No.743 of 2009(LRTT) filed before the learned Tribunal for recalling the order dated July 07, 2009 or any of the aforementioned orders passed by the learned Tribunal on the petitioners. He further submitted in their affidavit in opposition, the respondents could not substantiate that any of the petitioners had ever been informed either of the restoration of the said appeal O.A (P) N.1440 of 2008(LRTT) by the learned Tribunal or the transfer of the said appeal to the learned District Judge, South 24 Paraganas (south) or the transfer of the Ejectment Appeal No.22 of 2011 to the learned appellate Court below or that any notice of the hearing of the said Ejectment Appeal No.22 of 2011 before the learned 8 appellate Court below was served upon any of the petitioners. He also drew the attention of this Court to the record to Ejectment Appeal No.22 of 2011 and submitted that there is nothing in records of the said appeal that the notice of appeal had at all been served upon the petitioners or that they had entered appearance in the said appeal by filing any vokalatnama. According to him, when the petitioners had no knowledge of the recalling of the order dated July 02, 2009 or the restoration of the appeal O.A (P) No.1440 of 2008(LRTT) by the learned Tribunal or the transfer of the said appeal to the District Judge, South 24 Paraganas and they did not receive any notice of hearing of the said appeal being Ejectment Appeal No.22 of 2011 or the passing of the judgment and decree dated December 21, 2011 passed by the learned appellate Court below until they were dispossessed from the suit property by the court bailiff on July 18, 2014, the petititioners have made out a bona fide case for condonation of delay in preferring the second appeal. In support of the case of the petitioners for condonation of delay, Mr. Roychowdhury first relied on the decision of the Division Bench of this Court in the Case of Rai Saheb Chandramal Indrakumar-Vs.-J. M. Goenka reported in 67 CWN 482, where it was held that the words "sufficient cause" appearing in Section 5 of the 9 Limitation Act should receive a liberal construction so as to advance substantial justice when no negligence, nor inaction, nor want of bona fide is imputable to the applicant the Court should allow his application for condonation of delay. He also relied on the decisions of the Supreme Court in the cases of Collector, Land Acquision, Anantnag-Vs.-Katiji, reported in AIR 1987 SC 1353, N. Balakrishnan-Vs.-M. Krishnamurthy, reported in 1999(1) CAL LT (SC) 51 and M. K. Prasad Vs. P. Arumugam, reported in (2001) 6 SCC 176.
However, Mr. Debasish Roy, learned Advocate appearing for the respondent submitted that the petitioners were aware of the pendency Ejectment Appeal No.22 of 2011 before the learned appellate Court below and the same is evident from the affidavit affirmed by the petitioner No.2 verifying the present application where he stated that "the statements made in paragraph 1 to 11 are true to his knowledge, being materails of record". He, however, could not point out anything from the records of the Ejectment Appeal No.22 of 2011 that the notice of the said appeal was at all served upon any of the present petitioners, the respondents in the appeal or that any of the present petitioners had entered appearance in the said appeal by filing any vokalatnama.
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I have considered the materials on record, as well as the argument advanced by the learned counsel appearing for the respective parties. As discussed above, it is the case of the petitioners that the order dated July 02, 2009 was recalled and the appeal O.A (P) N.1440 of 2008(LRTT) was restored by the learned Tribunal, without any application filed by the respondent being served upon them and they were not even served with any of the orders dated January 13, 2010 and January 11, 2011 passed by the learned Tribunal. The petitioners have further alleged even the learned appellate Court below diposed of the Ejectment Appeal No.22 of 2011 without any notice of appeal being served upon them and the observation of the learned appellate Court below made in the judgment dated December 21, 2011 that the summons of the appeal had been served upon them and they entered appearance in the appeal by filing vokalatnama is perverse. The petitioners have also alleged that they were not served with copies of any of the application filed by the present respondent before the learned executing Court, resulting in their dispossession from the suit property.
The respondent has not been able to substantiate in his affidavit in opposition or otherwise from the records of the learned Courts below, that the grounds urged by the 11 petitioners in this application for condonation of delay in preferring the second appeal is untrue or that the acts of the petitioners lack bona fide. As held by the Division Bench of this Court in the case of Rai Saheb Chandramal Indrakumar (supra) and the Supreme Court in the cases of Collector, Land Acquision, Anantnag (supra), N. Balakrishnan (supra) and M. K. Prasad (supra) for deciding an application for condonation of delay under Section 5 of the Limitation Act the words "sufficient cause" should receive a liberal view. It is also the trite law that while deciding an application under Section 5 of the Limitation Act the length of delay is not material, but it is the sufficiency of the explanation for delay which is relevant for the decision of the Court. Liberal construction of the expression "sufficient cause" is intended to advance substantial justice, which itself pre-supposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. In this regard, reference may profitably be made to the decision of this Court in the case of Esha Bhattacharjee-vs-Managing Committee Of Raghunathpur Nafar, reported in (2013) 12 SCC 649.
In the facts of this case, as discussed above I find that the conduct of the petitioners is not vitiated by any latches or lack of bona fide and the petitioners have substantiated their 12 lack of knowledge about the restoration of the appeal O.A (P) No.1440 of 2008(LRTT) by the learned Tribunal, the transfer of the appeal by the learned Tribunal to the learned District Judge, South 24 Paraganas and the subsequent transfer of the Ejectment Appeal No.22 of 2011 to the learned appellate Court below. The petitioners have also substantiated that they had no scope to contest the appeal before the learned appellate Court below, no vokalatnama was filed on their behalf in the said appeal before the learned appellate Court below and they were also not aware of the filing any of the applications by the respondent before the learned executing Court resulting in their dispossession from the suit property on July 18, 2014. When the allegations of the petitioners in this application are borne out from the lower Courts' record, I do not find any merit in the argument advanced on behalf of the respondent that the verification of the application, with the affidavit affirmed by the petitioner No.2 to the effect that the statements made in paragraph 1 to 11 are true to his knowledge being matters of record, substantiates the petitioners to have knowledge about the restoration of the appeal O.A (P) N.1440 of 2008(LRTT) by the learned Tribunal, the pendency of the Ejectment Appeal No.22 of 2011 before the learned appellate Court below and passing of the judgment and decree dated 13 December 21, 2011 by the learned appellate Court below before being dispossessed from the suit property.
For all the foregoing reasons, the present application stands allowed and delay in preferring the second appeal by the petitioners against judgment and decree dated December 21, 2011 passed by the learned appellate Court below, in Ejectment Appeal No.22 of 2011 is condoned.
Let the appeal, being SAT No.488 of 2014, together with the lower Courts' records be placed before the appropriate Division Bench for hearing under Order XLI Rule 11 of the Code of Civil Procedure, 1908.
With the above directions, the application CAN 10814 of 2014 stands disposed of without any order as to costs.
Urgent certified server copy of this order, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)