Calcutta High Court
Union Of India (Uoi) And Anr. vs Adarsh Properties Pvt. Ltd. on 16 May, 2005
Equivalent citations: 2005(4)CHN676
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing stems from an application filed by the petitioners/appellants praying for recalling the order dated 29.3.2000 dismissing the appeal for default, supported by an application under Section 5 of the Limitation Act for condonation of delay of about four years eleven months four days.
2. The grounds for condonation as borne out in the aforesaid application under Section 5 of the Limitation Act are that on receipt of a notice under Order 21 Rule 22, CPC from the Registrar, Small Causes Court at Calcutta directing the appellants to show cause on 24.2.2005 as to why the Ejectment Execution Case No. 181/2004 filed by the plaintiff/respondent should not be granted. Mr. Dipak Kumar Mukherjee being engaged to contest the said execution case came to learn after inspection of records on 24.2.2005 about dismissal of the First Appeal No. 241/81 for default on 29.3.2000. On being contacted by Assistant General Manager (Building II), BSNL, Calcutta Telephones, Mr. Sardar Amjad Ali, Senior Advocate who was engaged in the said appeal, reported that as his name had been struck down from the panel of the Central Government Advocates, he returned the brief in 1999 to the Ministry of Law and Justice at Raja Chamber, 4, Kiron Sankar Roy Road, Calcutta 700 001. As the brief could not be traced out in the said office at Raj Chamber, Mr. Sardar Amjad Ali, on request, made over a xerox copy of the Papar Book. Neither the Advocates-on-record nor the Ministry of Law & Justice at Raja Chamber intimated the petitioners about the above order of dismissal of the appeal nor the petitioners had any knowledge about return of the brief by Mr. Sardar Amjad Ali, to the Ministray of Law & Justice and they came to know of the above order of dismissal only on 24.2.2005.
3. Mr. Mukherjee, learned Counsel for the petitioner, on referring as many as six decisions viz. Rafiq v. Munshilal, , Radha Krishna Rai v. Allahabad Bank, reported 2000(9) SCC 733, N. Balakrishnan v. M. Krishnamurthy, , M. K. Prasad v. P. Arumugam, , Municipal Corporation, Gwalior v. Ramcharan (D), and CR No. 3251(F)/2002--Kedarnath Jute Manufacturing Co. Ltd. v. State of West Bengal (unreported) advanced argument contending that on the fact aforesaid when there was no intimation to the petitioners either from the engaged Senior Counsel Mr. Sardar Amjad Ali or from the Ministry of Law & Justice at Raja Chamber, 4, Kiron Shankar Roy Road, Calcutta - 700 001 regarding return of the brief in 1999 on account of striking out the name of Mr. Sardar Amjad Ali from the panel of Central Government Advocates nor the petitioners had any knowledge about the order of dismissal of the appeal for default on 29.3.2000 due to non appearance of any person on behalf of the appellants earlier to 24.2.2005, delay should be condoned particularly when after preparation of paper books no duty was cast upon the appellants to perform in the subject of appeal and there was no laches or negligence on their part in prosecuting the appeal. On referring to the challans Mr. Mukherjee further contended that still now his clients have been depositing amount regularly month by month as per order of this Court which shows their diligence in prosecuting the appeal. Mr. Das, learned Counsel for the respondent, on the other hand, on referring four decisions viz. Ramlal and Ors. v. Rewa Coalfields Ltd., , Income Tax Officer, 'F' Ward Dist. IV (3), Calcutta and Anr. v. Indian Overseas Corporation, reported in 1993(1) CLT (HC) 132, Oriental Insurance Co. Ltd. v. Sabita Roy, reported in 1997(1) CLT (HC) 24 and Union of India v. Ram Charan, , contended that the causes shown by the petitioners cannot be said to be sufficient to justify condonation of such abnormal delay for about five years for recalling the order of dismissal for default of the appeal thereby infringing his clients' valuable right and that when delay has not been properly explained, the application under Section 5 should be dismissed.
4. The period of limitation for restoration of an appeal dismissed for default is 30 days from the date of dismissal under Article 122 of the Limitation Act. Any application to which Article 122 is attracted can be entertained by the Court beyond the period of limitation on the applicant's showing sufficient cause in making the delay in filing the application.
5. Proof of sufficient cause is the condition precedent for the exercise of discretionary jurisdiction vestesd in the Court by Section 5 of the Limitation Act. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration, but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it, as was observed in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. (supra). In construing Section 5, it is relevant to bear in mind two important considerations. First, when the period of limitation prescribed has expired, the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be lightheartedly disturbed. Secondly, if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that the judicial power and discretion in that behalf should be exercised to advance substantial justice, as was observed by the Apex Court in M. K. Prasad v. P. Arumugam (supra). The true guide for a Court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In such a matter what is relevant consideration for exercising the discretion is that unless want of bona fides or inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application should not be thrown out nor any delay should be refused to be condoned. In N. Balakrishnan v. M. Krishnamurthy (supra) which involved a delay for about 883 days, appellant engaged an Advocate for setting aside the exparte decree, but the Advocate failed to inform that the application was dismissed for default. On receipt of a notice of the execution proceeding the appellant signed some papers on the advice of the same advocate to resist the execution proceeding, but the said Advocate did not do anything. After receipt of the execution warrant the appellant rushed to the Court and learnt that his Advocate left the profession. The Court held condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion. It has been further observed in that decision that 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 of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.
6. In the case on hand, Senior Counsel Mr. Sardar Amjad Ali who was engaged as lawyer to conduct the appeal returned the brief to the Ministry of Law & Justice at Raja Chamber, 4, Kiran Shankar Roy Road, Calcutta - 700 001 in 1999 on account of striking out his name from the panel of Central Government Advocates. To our mind, it was his duty to intimate about such return of brief, to the appellants so that the latter could take steps for engagement of another Advocate, but he failed to do so resulting in dismissal of the appeal for default, and only after receipt of notice of the execution proceeding which was filed after about four years of the said order of dismissal, the appellant came to learn about the fate of this appeal. Though the period of delay is unduly long, the circumstances are very unsual, and refusal to condone the delay in such circumstance will result injustice to be defeated because of a non-deliberate delay. A party who, as per the present adversary legal system, has selected his Advocate, briefed him and paid his fee can remain supremely confident that his lawyer will took after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can be rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch-dog of the Advocate that the latter appears in the matter when it is listed, as it is no part of his job, as was held in the case Rafiq v. Munshilal (supra) which involved more or less similar fact like case on hand. There is nothing to indicate mala fide or inaction or negligence on the part of the appellants, on the contrary, the very fact that still they have been depositing amount by month as per order of this Court lends support to the contention of Mr. Mukherjee that they are vigilant. The facts and circumstances of other decisions so referred to by the learned Counsel for the respondent being quite different, the said decisions have no application in this case.
7. In the circumstances, the explanation set up by the petitioners appear to be satisfactory.
8. While condoning the delay the Court should not forget the opposite party altogether, and it must be borne in mind that he is a looser and he too would have incurred quite a huge litigation expenses and it would be salutary guideline when Courts condone the delay it shall compensate the O. P. for his loss, as was observed in the aforesaid case of N. Balakrishna v. M. Krishnamurthy.
9. We, therefore, allow the application under Section 5 of the Limitation Act for condonation of delay subject to payment of cost of Rs. 8, 000/- to be paid to the Advocate-on-record on behalf of the respondent within one month from date, failing which the application shall stand dismissed. If the cost is paid within the prescribed period as above, the impugned order of dismissal for default of the first appeal be set aside and the appeal be restored to its original file and number.
10. The applications being CAN No. 2322 of 2005 and CAN No. 2321 of 2005 stand disposed of accordingly.
Debiprasad Sengupta, J.
11. I agree.