Calcutta High Court (Appellete Side)
Serajuddin Ansari vs Union Of India & Ors on 21 August, 2018
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
1 21.08.18 cl 1081 ab C.A.N. 1577 of 2018 With C.A.N. 808 of 2018 In W.P. 324(W) of 2003 Serajuddin Ansari
-Vs Union of India & Ors.
Mr. Bidyut Baran Biswas, ... for the petitioner/applicant Mr. Daya Shankar Mishra, ... for the opposite parties Re: C.A.N. 1577 of 2018 Let the affidavits of service filed in Court today be kept with the record. This is an application for condonation of delay of 1598 days in filing C.A.N. 808 of 2018 which is an application for restoration of the writ petition upon recalling the order dated September 16, 2013.
The case of the petitioner/applicant, inter alia, is that he had entrusted a learned advocate to file W.P. 324(W) of 2003. When the said learned advocate fell seriously ill, he entrusted Mr. Setabuddin Khan, the learned advocate to take the responsibility of the matter. Thereafter, the petitioner/applicant used to take information of the case from Mr. Setabuddin Khan. Some time in June, 2018 he came to learn from one of his office colleagues that the writ petition had been dismissed for default. He immediately contacted Mr. Khan. Since his answer was not very satisfactory, he contacted the present learned advocate and upon 2 enquiry, it was found that the writ petition had been dismissed for default on September 16, 2013.
Two things stand out very clearly in this application. First, the petitioner/applicant has laid the entire blame at the doors of the learned advocate who was conducting the case previously. Secondly, the petitioner/applicant for a very long time did not make any enquiry about the fate of the case from the learned advocate conducting the case.
Mr. Biswas, the present learned advocate for the petitioner/applicant tries to supplement verbally that the erstwhile learned advocate all through gave him assurance that the matter was pending, but such is not the pleading of the petitioner. Regard being had to the common course of conduct of a litigant, it is expected that he shall from time to time enquire about the fate of the case from the learned advocate. In the present case, if his version is correct, the petitioner accidentally came to know of the dismissal of the writ petition about five years before from one of his office colleagues whose name even he has not mentioned, far less disclosing in the application why and under what circumstances such information was given by that colleague to the petitioner or how he had come to know of it. If the petitioner had the knowledge of the fate of the writ petition on June 16, 2018, at least for 1585 days he did not make any enquiry nor did he take any initiative. It was only after 1585 days, that the application being C.A.N. 808 of 2018 had been filed by the petitioner.
The law on the point is very well settled that even upon showing a very sufficient cause, it is not that the Court will have to condone the delay in filing an application. The language used in Section 5 of the Limitation Act is 'may' giving discretion to the Court to condone the delay depending upon the various factors including the conduct of a litigant.
The Court assumes jurisdiction to exercise the discretion to condone the delay provided the litigant satisfies the Court that he has been prosecuting the case with sufficient diligence but in spite of it, there had been delay in taking appropriate steps. In the present case, the diligence of the petitioner is not reflected in the application except his statement in paragraph 16 that he had no 3 wilful laches in the dismissal and that the petitioner/applicant had become a victim of the circumstances. How he had become a victim of the circumstances, has not been shared by the applicant with the Court.
I regret to hold that the application does not contain evidence of the applicant's prosecuting the case diligently which is a pre-condition for condonation of delay, particularly in a writ petition after about five years from the date of its dismissal.
Thus, I find no merit in the application being C.A.N. 1577 of 2018 and the same is hereby dismissed.
Re: C.A.N. 808 of 2018 Since the delay in filing this application has not been condoned, the application being C.A.N. 808 has become infructuous and the same is also dismissed as infructuous.
(Dr. Sambuddha Chakrabarti,J)