Calcutta High Court (Appellete Side)
Kishor Kumar Lala vs Shrimatya Sandhya Lala & Ors on 6 February, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
PRESENT: The Hon'ble Justice Mir. Dara Sheko.
C.O.3745 of 2016
Kishor Kumar Lala.
Versus
Shrimatya Sandhya Lala & Ors.
For the Petitioner: Mr. S.P. Roy Chowdhury,
Mr. Debasish Ray,
Mrs. Usha Maity.
For the Opposite Parties: Mr. Rabindra Nath Mahato,
Mr. Anindya Bhattacharya,
Mr.Aritra Shankar Ray.
Heard on : 19.01.2017 & 20.01.2017.
Judgment on: 06.02.2017
1. The application under Article 227 of the
Constitution of India is filed by the
plaintiff/respondent/petitioner (who will be called on
hereafter as the petitioner) assailing order No.30 dated March 22, 2016 passed by learned Additional District Judge, 2nd Court, Purba Medinipur at Contai in allowing the application under Order XLI Rule 3A read with Section 5 of the Limitation Act, 1963 and thereby admitting Title Appeal No.1 of 2014 condoning the delay of 2 years 7 months, as is preferred by opposite party Nos.1, 2, 3, 4 who were defendant Nos.2, 3, 4 and 7 respectively in original Titile Suit No.45 of 1988. Said Title Suit No.45 of 1988 (renumbered from Title Suit 75 of 1986) for partition, was decreed in preliminary form on March 21, 2011. The operative part of said preliminary decree is set out hereunder:-
"In the result the suit succeeds in part. Court fees paid a sufficient. Hence, it is ORDERED That the suit is parly decreed in preliminary form on contest against defendant Nos. 13, 14, 16 & 17 and ex parte against the rest without any cost. It is hereby declared that the plaintiff has 7/72 shares in the 'Ka' schedule property.
It is further declared that the defendant No.13 & 14 jointly have ¾ shares only in plot Nos. 87 & 88 and 3/8 shares only in plot Nos.90 & 92 of Mouja Monoharchak.
It is also declared that the defendant Nos. 16 & 17 have 55/72 shares only in plot Nos. 88, 89 & 90 of Mouza Subdi".
2. Since learned Additional District Judge upon hearing both sides condoned the delay by order No.30 (Supra), the penultimate portion of the impugned order is also set out hereunder:-
"Here, I find a prima facie case on the part of the appellants, so I rely on the observation held in 2014 (iv) Indian Civil Cases 733 wherein it has been observed that the delay may be condoned if there is a prima facie merit for adjudication of the issues and a litigant should not be ousted from the Court of Law on technical ground of limitation but if there is prima facie merit for adjudication, delay should be condoned. I also relied on the observation held in (2005) 3 Supreme Court Cases 752 wherein it has held that expression sufficient cause should be considered with pragmatism in a justice-oriented approach rather than the technical cause for explaining every day's delay. I also rely on the observation held in A.I.R. 1989 GUJRAT 227 wherein it has been observed that "the ultimate object of the procedural law is to see that substantial justice is done to the parties. Hence, it should be endeavour of the Court to see that the disputes are resolved as far as possible on merits in just, fair and reasonable manner. Victory or defeat on technical grounds should oridinarily be avoided and discouraged".
The case laws cited by the respondents do not attract the facts and circumstances of this appeal".
3. Mr. Roy Chowdhury, learned senior Advocate for the petitioner inviting attention to this Court's order dated 04.10.2016 submitted that the causes as were shown by the opposite parties in their initial application for condonation of delay of 2 years 7 months i.e. 940 days in preferring the Title Appeal No.1 of 2014 were neither sufficient nor satisfactory, this Court has given opportunity to the opposite parties to disclose the "better particulars, which occasioned the delay in filing the said appeal before the Court of Appeal below". But the particulars though filed by the opposite party Nos.1 to 4 on 7th of November, 2016 it did not develop the merit of their case. Mr. Roy Chowdhury further inviting attention to copies of different documents annexed with the counter affidavit dated 29.11.2016 submitted that the causes of delay as alleged were false, malafide and based on untruthful statements, which are liable to be rejected.
4. Mr. Roy Chowdhury further argued that in the suit, the opposite parties had engaged Advocate and Power of Attorney respectively and the suit was looked after not only by opposite party No.1, but also by others and ultimately the opposite parties chose not to contest since on executing the deed of gift in favour of the petitioner by his mother i.e. opposite party No.1 for self and guardian mother of opposite party No.2 admittedly they had no more share in suit property, and, that is why the preliminary decree was passed on contest against the contesting defendants of the suit and ex parte against the rest. Thus, submitting of having no case of the opposite party Nos.1 to 4 for adjudication, critising the impugned order as perverse rendering complete injustice in the midst of the process of Final Decree prayed to allow the revision setting aside the impugned order.
5. Mr. Rabindra Nath Mahato, learned Advocate for the opposite party Nos.1 to 4 argued that order of refusal or grant to condone delay in a civil proceeding is upto the discretion of the Court. Submitted, if there are good causes to the satisfaction of the Court, and when learned Additional District Judge taking note of meritorious case of the opposite parties applied liberal approach to admit the Title Appeal in condoning the delay, the Revisional Court should not interfere with such discretionary order. Mr. Mahato particularly referred to paragraph Nos.15, 16, 17 & 18 of Affidavit on 07.11.2016 sworn on behalf of opposite party No.1 to 4 filed before this Court, which are set out below:-
(a). That since written statement filed by my mother and myself in Title Suit No.45 of 1988 was not accepted, on December 18, 2008 my mother, the opposite party No.23 and myself filed an application in Title Suit No.276 of 1996, inter alia, prying for our transposition as plaintiffs, which was allowed on May 13, 2009. That these opposite parties were under the impression that the Title Suit No.276 of 1996 is a comprehensive suit and if such suit is decreed, these opposite parties would get complete relief.
(b). That the Title Suit No.276 of 1996 was not stayed and on March 16, 2016 the same has been decreed in appeal being Title Appeal No.27 of 2013. That the decree passed in Title Appeal No.27 of 2013 has been challenged before this Hon'ble High Court at Calcutta by filing a second appeal and the same is pending adjudication before this Hon'ble Court.
(c). The petitioner contested Title Suit No.276 of 1996 and Title Appeal No.27 of 2013 and the Title Suit No.276 of 1996 was not stayed, these opposite parties were, accordingly, under the impression that the petitioner is not giving much importance in Title Suit No.45 of 1988.
That in such circumstances these opposite parties concentrate themselves in Title Suit No.276 of 1996 and Title Appeal No.27 of 2013 and when on December 16, 2013 for the first time they came to know about the decree passed in Title Suit No.45 of 1988, Title Appeal No.1 of 2014 has been filed.
(d). That since these opposite parties were not aware about the decree passed in Title Suit No.45 of 1988, these opposite parties could not file Title Appeal No.1 of 2014 in time and there is delay of about 2 years 7 months in filing such appeal.
6. Mr. Mahato also relied on the following cases in support of his submission that always linient approach should be taken in condoning the delay for rendering substantial justice.
1. AIR 1989 CALCUTTA 91 DULAL CHANDRA OJHA Vs. BANAMALI GUCHAIT
2. (1998) 1 CALCUTTA LJ 22 PRATIMA MONDAL Vs. DHARIDNAR MONDAL
3. (2001) 6 Supreme Court Cases 176 M.K. PRASAD Vs. ARUMUGAM
4. (2003) 10 Supreme Court Cases 691 MITHAILAL DALSANGAR SINGH AND OTHERS Vs. ANNABAI DEVRAM KINI AND OTHERS
5. (2004) 7 Supreme Court Cases 482 GANESHPRASAD BADRINARAYAN LAHOTI Vs. SANJEEVPRASAD JAMNAPRASAD CHOURASIYA AND ANOTHER
7. Since appreciation of law of Limitation in the case mostly are oriented with facts let the revisional application be decided on the following consderations:-
(a) Whether in exercising power of superintendence under Article 227 of the Constitution of India, this Court should interfere with the impugned order?
(b) Whether the order impugned suffers from perverseness in the process of decision making by ignoring some relevant facts on record? Or,
(c) Whether the "better particulars" supplied by the opposite parties are acceptable in not disturbing admission of Title Appeal 1 of 2014 by condoning the delay?
(d) Whether the order impugned should be upheld, or to be set aside.
8. I have gone through the decisions cited at the bar and also materials on record including the affidavit submitted on behalf of the opposite parties No.1 to 4 involving "better particulars", leave for which was granted by the Court and the affidavit of the petitioner against the affidavit of the opposite parties No.1 to 4.
9. At the very outset, it can be said that the Provision adumbrated in Rule 3A of Order 41 of the Code of Civil Procedure is virtually a replica of Section 5 of the Limitation Act, 1963 in some elucidated form with additional 3 separate clauses. But in both the cases the main mater must have to be accompanied with an application supported by affidavit explaining the reasons of delay in filing the main matter, be it an appeal, or, application. In turn the Court accepts the reasons to condone the delay if the Court is satisfied about sufficient cause. These cardinal principles are to be followed by the litigants in seeking reliefs from the Court so long such provisions are appearing in the Code or in the Act. The ratio of the above noted decisions though have been formulated on different facts and circumstances, which will be dealt with at the appropriate stage, those are sounding in the same voice that for substantial justice prayer of condonation of delay should be construed liberally, so that, a meritorious case be not defeated under such technical bar of limitation. The principle also has been formulated that for the purpuse of condonation of delay, length of the period is not a matter, provided the cause behind such delay is sufficient and acceptable to the Court.
10. To examine the process of decision making adopted by the Sub-ordinate Court, I find that the petitioner, Kishore Lala filed a suit for partition initially in 1986, which was renumbered as Title Suit No.45 of 1988, against the opposite parties and others, where opposite party Nos. 1, 2, 3 and 4/ appellants of the Title Appeal No.1 of 2014 were defendant No.2, 3, 4 and No.7 respectively. Said Title Suit No.45 of 1988 was disposed of as contested one on September 21, 2011 i.e. long after about 25 years.
11. In the suit, on the side of the petitioner and contesting defendants as many as four witnesses each were examined, and, after examining the evidence on record both oral and documentary learned Trial Court decreed the partition suit in preliminary form, the relevant part of ordering portion has already been quoted above. It is redundant to mention once again, that as against the present opposite parties No.1 to 4 ( who were defendant Nos. 2, 3, 4 and 7) along with others, the suit has been decreed ex parte since ultimately they did not contest, and, it is contested decree as against defendants No.13, 14, 16 and 17, whose shares also were determined amd declared in the preliminary decree, presumably to avoid multiplicity of litigations between the contesting parties, specially when in a suit for partition everybody is plaintiff and everybody is defendant, and, any party to such partition suit can get his share declared and obtain preliminary decree subject to usual other formalities.
12. Although as against the present opposite party Nos.1 to 4 the effect of said preliminary decree was passed ex parte but the recourse to those opposite party Nos.1 to 4 would not be avaliable within the ambit of Order 9 Rule 13 of the Code of Civil Procedure, since the decree as against others, as mentioned above, was a contested decree. It appears from the record that the opposite parties in the midst of the proceeding had chosen not to contest further. In view of above since a misc. case under Order 9 Rule 13 would not be maintainable a regular first appeal has been filed being title Appeal No.1 of 2014 by opposite party Nos.1 to 4, though they had chosen neither to contest further nor to bring out their share through a preliminary decree in the suit. Therefore, let me re-look to the materials on record avaliable before this Court to arrive at the conclusion that in the decision making process by admitting the appeal the Learned Additional District Judge by condoning the delay did not commit illegality giving exposure of perverseness.
13. In Para-10 of the affidavit dated 07.11.2016 disclosing "better particulars" the opposite parties claimed that on scrutiny of the records sometimes in the year 2007 through their learned Advocate, they found that one written statement was lying in the record "allegedly filed on behalf of these opposite parties on 2nd March, 1989". The opposite party No.1 Shrimatya Sandhya Lala for herself and on behalf of her son Nimai Chand Lala prayed for rejection of that written statement. Said prayer was rejected on April 10, 2007, and further, on October 1, 2007, the opposite party No.1 and her son Nimai Chand Lala i.e. opposite party No.2 filed fresh written statement on December 20, 2007 and the same was also not accepted and thereby rejected.
14. By aforesaid statements on oath in the affidavit disclosing "better particulars" the opposite parties by putting the word "allegedly" in their affidavit tried to give impression that the said written statement dated March 2, 1989 was not filed by opposite party No.1 for herself and her the then minor son and therefore, fresh written statement was filed.
15. However, despite of such desparate attempt, it is established as an undenying fact that opposite party No.1 submitted that written statement on March 2, 1989 for herself and as guardian mother of her the then minor son Nimai Lala. Submission is made by Mr. Mahato that court guardian ought have been appointed since Nimai Lala was a minor at that time. I find from the record that although in the midst of the suit the opposite parties had chosen not to contest further, the grievance has been ventilated in the grounds of appeal over a deed of gift dated 17.01.1985 which in ground No.13 of the memorandum of appeal was asserted to be a document brought by the petitioner (he being another son of opposite party No.1) by practising undue influence, misrepresentation so on and so forth. It is redundant to say that the share of the petitioner in the partition suit was also dependent upon the said deed of gift. Nimai Chand Lala was born in the year 1973. The impugned deed of gift was dated 17.01.1985 said Nimai Chand Lala thus became major sometimes in 1991. From the document annexed by the petitioner supported by affidavit it remained as an admitted fact on record that the opposite party No.1 for herself and for her the then minor son Nimai Chand Lala filed W.S. in the suit on 2nd March, 1989 admitting due execution and registration of the said deed of gift dated January 17, 1985 in favour of the petitioner, and, thereby they contended that they having no more share, interest or possession in the suit property they were unnecessary parties in said suit for partition.
16. From order dated 10th April, 2007 of the Trial Judge in suit I find that the opposite party Nos.1 and 2 who were defendants No.2 and 3 in suit jointly prayed to get the aforesaid written statement dated 2nd March, 1989 rejected but said prayer was rejected by the learned Trial Judge recording the following order, "heard the Ld. Lawyer for the plaintiff and the other defdts. On perusal of the petition and the record I am of the opinion that the said written statement was filed on 02.03.1989 and thereafter issues were framed and evidence were recorded. I am of the opinion that the said prayer defendant Nos. 2 to 3 is not inclined to be granted. Therefore, petition filed by the defendant Nos. 2 and 3 is considered and rejected".
17. It appears that Shrimatya Sandhya Lala and Nimai Lala jointly executed fresh vokalatnama appointing learned Advocate on their behalf on 28th March, 2007. So Nimai Lala joined in that vokalatnama with her old mother at his age of about 34 years i.e. after about 16 years of attaining majority. Against the aforesaid order dated 10.04.2007 bearing rejection of the prayer of the opposite party Nos.1 and 2 to reject their written statement dated 2nd March, 1989, there being no order of higher forum in support of its setting aside or alteration, or, giving liberty to submit fresh written statement, said order dated 10.04.2007 remained as good as the other unaltered order passed by the learned Trial Court, nonetheless, being driven out by their improvised brain they did not leave to take further opportunity to move before the learned Trial court in filing another application accompanying a fresh written statement proposing for its acceptance. From order dated 20.12.2007 passed by learned Trial Court I find that said prayer also was rejected and it was rightly rejected. Because, while there is already one written statement on record the same may be proposed for amendment if necessary, without changing its basic structure, but, a fresh written statement ignoring or overthrowing the earlier one or to keep two written statements on record contradicting each other is unknown in the Code of Civil Procedure. This Court is really surprising as to why Learned Additional Judge responsible for the decision making completely ignored or bypassed these materials on record before chosing to take linient view in condoning delay for rendering substantial justice. Rendering of justice can not be one sided. The same also can not be rendered in the name of doing justice by rendering injustice to the otherside, especially when, after long battle of about 25 years by giving proper opportunity to all the defendants in suit inclinding the opposite party Nos.1 to 4 the petitioner has accured some legal right by virtue of of the contested decree in preliminary form passed by the Court, which is now in the process of final partition.
18. One of the other pleas was that Shrimatya Sandhya Lala opposite party No.1 was the basic Tadbirkarak to look after the proceeding of the suit and due to old age and ailing health she could not look after, and in this way the suit was disposed of ex parte as against the opposite parties. Amongst the documents filed by the petitioner supported by affidavit it appears that it was not his mother but Nimai Lala himself by swearing affidavit in Tamluk Court on 20.03.2007 had submited the application. From another annexed document of the same day it appears that opposite party No.4 Bandana Roy had taken step in the suit through her Power of Attorney cum husband Shri Ajay Kumar Roy. This is the cardinal principle that one who seeks equity must do equity and must come with clean hands. On scrutiny of the materials on record, discussed above, I firmly hold that the opposite parties who had initially submitted written statement admitting due execution and registration of the deed of gift and claming themselves as unnecessary party to this suit for partition, subsequently having become clever being driven out by their improvised brain attempted to resile, so that, by hook or by crook if taking present old age of the opposite party No.1, the dispute over said deed of gift can be reopened afresh then effort could have been made to reduce share of the petitioner declared in the preliminary decree. That is the ulterior whole motive as has come true as broad day light for preferring the Title Appeal No.1 of 2014 against a preliminary decree which has been delivered by the Court after about 25 years of contest as against the contesting defendants and ex parte as against the rest including the opposite party Nos. 1 to 4, and that too waking up from sleep to file such an appeal after about 2 years and 7 months of that decree.
19. The case of Dulal Chandra Ojha (Supra), dealt with by the Single Bench, was related to restoration of a Miscellaneous case under Order 9 rule 9 of the Code of Civil Procedure, which was filed accompanying an application under Section 5 of Limitation Act for condoning the delay, allowing the Misc. Case and to restore the suit which was dismissed for default. Both the learned Courts below dismissed respectively the Miscellaneous case and Miscellaneous Appeal not only on technical ground but on merit also. However, this Court, taking note of the case of collector Land Acquisition, Anantanag Versus Mst. Katiji reported in (1987) 2 Supreme Court cases 107 in the matter of expression "sufficient case", condoned the delay allowed the Revisional Application to restore the suit with the following observations:-
"It is common knowledge that the Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. In the instant case applying the said test this Court finds that a liberal approach ought to have been made to understand the sufficient cause as to the absence of the petitioner on the date of dismissal of the case for default. However, for ends of justice an opportunity may be given to the petitioner to contest the main case on merit".
20. The Supreme Court in the case of Collector Land Acquisition (Supra) condoned the delay, set aside the order of the High Court of Jammu and Kashmir and remanded the matter to that High Court to hear the appeal on merit preferred by the State of Jammu & Kashmir arose out of a decision of the Tribunal enhancing compensation in respect of the land, acquired for public purpose. The penultimate observation is set out hereunder:-
"In fact experience shows that on account of an impersonal machinery ( no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non- grata status. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside".
21. Thus, the facts on which delay was condoned have no identicallity with the facts and circumstrances of the case on hand. The Supreme Court was pleased to condone the delay in preferring the appeal not by any private individual but by one State, that too related to involvement of public money and public cause, and such a move by one State has to go by several official formalities till according approval for preferring appeal.
22. Therefore, the cause of delay, reason of condonation of delay on the facts lying beyond control being found absent in the case on hand, and this Court in the case of Dulal Chandra Ojha (Supra) having condoned the delay allowing the suit to be restored which was only dismissed for default without adjudicating any issue, whereas, in the case on hand the suit having been decided on contest against the parties so contested, and, ex parte against the rest after settling all the issues, the case of Dulal Chand Ojha (Supra) is distinguished and not applicable in the case.
23. The case of Pratima Mondal Versus Dharinar Mondal (Supra) dealt with by the Division Bench of this court was related to a Matrimonial appeal preferred by the wife for setting aside an ex parte decree of divorce where an application to condone the delay was accompanied. In that case, during continuance of the Matrimonial Suit filed by the husband, as a consequence of filing application for transfer of the suit to some other Court there was stay upto 14th February, 1997. As the plea was taken, the wife was under impression that the suit would not be disposed of till disposal of her application under Section 24 of the Code. But for want of any further order extending stay of the suit, the Matrimonial suit was taken up by the Trial Judge for disposal ex parte on 20th June, 1997. Being aware of such ex parte decree of divorce, the wife filed application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree before Ld. Trial Judge, but it was dismissed by recording following order, "on the ground that the Matrimonial Suit had been disposed of, in the meantime". The Division Bench thereby observed, "in such a situation, the wife claims to have obtained knowledge of the allegedly ex parte decree on 20th June, 1997, and thereafter, the miscellaneous case arising out of an application uder order 9 Rule 13 of the Code of Civil Procedure having continued, till its final disposal, no appeal could be preferred. The appeal was preferred actually on 11th November, 1997, after obtaining the certified copy of the decree under appeal on 17th July, 1997, in the aforesaid facts and circumstances and also in view of alleged illness of the wife during the interregnum", and in view of substantial explanation this Court in that peculiar circumstance found good enough to condone the delay and directed to register the appeal as against exparte decree of divorce for examining its propriety.
24. In the case on hand, the decree in question altogether was not an ex parte decree. It was a contested decree as against contesting defendants by determining their share in the preliminary decree which remained binding as ex parte also against the parties to that Title Suit 45 of 1988 along with the opposite parties who did not ultimately contest. In such situation, the opposite party Nos. 1 to 4 has come up with a belated first appeal under Order 41 of the Code of Civil Procedure since any such miscellaneous case under Order 9 Rule 13 of the Code would not be maintainable against the decree impugned. Be that as it may, since the criteria for consideration under Order 9 Rule 13 of the Code being altogethter different for deciding the propriety of the judgment under challenge, and since, till disposal of the application under Order 9 Rule 13 filed by the wife before Learned Trial Judge, the wife had no opportunity to prefer regular appeal challenging the ex parte decree of divorce, the action of the wife before the High Court preceded by the step under Order 9 Rule 13 of the Code was favourably considered to admit the appeal by condoning delay. It is needless to mention that in a matrimonial suit (except in case of mutual divorce) there is tug of war either to separate matrial tie on one side and to keep such tie in tact by the otherside by denying all allegations. Such dispute relates on personal relationship, where combat is between wife and husband only. So any consideration made in such nature of Matrimonial suit usually can not be equated with a civil suit involving property for partition etc. Therefore, the case of Pratima Mondal (Supra) is distinguishable, and is not applicable in the case on hand.
25. The dispensation in the matter of what is to be considered and what should be avoided, is already in the field. In case of admission of a time barred appeal, acceptability of sufficient cause to the satisfaction of the Court, as is required under Order 41 Rule 3A of the Code of Civil Procedure read with Section 5 of the Limitation Act, 1963, is a matter of discretion of the Court, as is to be exercised judicously and not with simply casual or lenient approach by giving perverse observation without appreciating the opposition of the otherside in proper perspective. Such discretion is to be favourably exercised, provided, the party at fault has shown the causes of delay, and, the causes, so shown, are sufficient, not deliberate, and, are bonafide, and if these are tenable by the test of credence and satisfaction of the Court, then and then only it is to be accepted to allow the party opportunity of hearing instead of closing its door on the technical ground of limitation, provided again such party would have a meritorious and presentable case for adjudication. For the purpose, explanation of delay from hour to hour or day to day or month to month is not required, and that is also not the intention of the Legislature, or, even length of time so consummed becomes immaterial if the cardinal principles are only fulfilled. Thus, concept for its favourable consideration is, so that, a meritorious case may not be thrown out of adjudication only on the technical ground of limitation where gross negligence or deliberate inaction or lack of bonafides is not imputable to the party seeking condonation of delay.
26. The quoted portion referred to in the case of M.K. Prasad Vs. P. Arunugam (Supra) in paragraph 9 is set out hereinunder to display the airtight concept in the matter of condonation of delay:-
"9. It is axiomatic that 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 the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a 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 and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the Lower Court".
Thus the consideration by the Superior Court even in revisional jurisdiction may be vice versa it it is found that the first Court of appeal condoned the delay in arbitrary or perverse manner in the garb of liberal approach.
27. The case of Mithailal Dalsangar Singh & Others Vs. Annabai Devram Kini & Others (Supra) was related to condonation of delay in setting aside abatement of a suit, where Trial Judge once formed opinion of having sufficient cause allowing setting aside abatement where superior courts normally would not interfere.
In the case of Ganesh Prasad Badrinarayan Lahoti (Supra) also as a consequence of not substituting the heirs of the deceased respondent in time application was filed for setting aside abatement and for substitution of heirs by condoning the delay. District Court rejected the prayer. The High Court in Revision also upheld the rejection order on the grounds of "(i) non-existence of any reasonable explanation for condonation of two years' delay, and (ii) applicability of resjudicata".
Relevant portion from paragraph 10 of the aforesaid decision is set out:-
In the facts and circumstances of the case, when the original defendant had not accepted the decree passed by the Trial Court and had preferred an appeal before the District Court which was pending and as soon as the appeal was placed for hearing and the advocate had addressed a letter to the appellants, prompt actions were taken by them, the lower appellate court ought to have granted the prayer for substitution. We are also of the view that after dismissal of application, Ext.22 the appellants had filed three applications, Ext.29, Ext.31 and Ext.33 which ought to have been allowed considering overall and attenuating circumstances of the case. The doctrine of res judicata could not be applied when the court felt that the applications were not maintainbale. In our considered view, this is not a case of inaction or negligence on the part of the appellants.
Therefore, the facts and nature of reliefs extended by the Supreme Court in the aforesaid two decisions, relied by the Mr. Mahato, being absolutely unidentical to the facts, circumstances and the tests in terms of the provisions to be applied in the case on hand, those decisions also are distinguishable and held not applicable.
28. Learned appellate court by the impugned order in the matter of condoning the delay of 2 years 7 months took guidance of three decisions including of one Gujrat High Court. Learned Judge did not set out any facts and circumstances of either those cases to appreciate applicability of ratio of the same in the case on hand. However, I took note that the case, as reported in AIR 1989 Gujrat 227 (Brij Kishore S. Ghosh Vs. Jayantilal Maniklal Bhatt & Another), was for eviction of tenant and recovery of possession, which was decreed ex parte due to non-appearnce of learned Advocates, so engaged by the tenant defendant of the suit. At the stage of taking possession of suit premises through bailiff the Judgment debtor /tenant having come to learn about the ex parte decree submitted application to restore the suit by setting aside the ex parte eviction decree along with a prayer for condoning delay of 3 monghs 10 days. The Single Bench of Gujrat High Court, being guided by the case of Collector, Land Acquisition, Anantnag Vs. Mst. Katiji AIR 1987 Supreme Court 1353 = (1987) 2 Supreme Court Cases 107, (Supra, on which discussion already held above), though allowed the revisional application and condoned the delay but, instead of restoring the suit directed the Court at the first instance "to hear and decide the application for setting aside the decree on merits in accordance with law" till when execution proceeding as to possession would remain stayed. In the case on hand, there was no ex parte decree to attract straightway the provisions of order 9 Rule 13 of the Code. Order 9 Rule 13, subject to embergo as put within its explanation and conditional two other provisos in succession, may be invoked only on two eventualities viz, (i) if summons are not served or (ii) there is sufficient cause of not appearing at the time, on the date when the suit/case is called on for hearing. Therefore, the ratio of this decision which was only within the scope or order 9 Rule 13, can not be applicable to the case on hand, where judgment was delivered in contested manner against some of the defendants who contested and ex parte against the rest either for non-appearance despite service of notice, or, by subsequent disappearance after taking steps on some occasions in the suit.
29. The other case of State of Nagaland Vs. Lipok Ao and others, on which learned Court below relied, was also related to a criminal appeal, preferred by the Government on taking leave. Since there was delay of 57 days in preferring a criminal revision by the Government against a judgment of acquittal on completion of several formalities oriented with the file pushing system from one table to the other including reconstruction of file due to its missing some where from office during the process, the delay was condoned requesting the concerned High Court to hear the criminal revision on merits, as was preferred by the State against the judgment of acquittal of the accused persons who were comprised of the escort party of a State Cabinet Minister and were booked in one shoot-out incident. Therefore, the ratio of this decision along with other has been wrongly applied by learned Court below in the case on hand, which has no semblance with fact, circumstance, sequence or nature of dispute or nature of proceeding. Usually this court does not interefere with the discretionary order where Learned Court below has exercised the discretion with some observations in condoning the delay and admitting the 1st appeal preferred by the opposite party Nos.1 to 4 against whom. The decree of the suit was passed ex parte. But in the process of exercising such discretion, if by examining the materials on record it is found that injustice is rendered to the otherside in the name of rendering substantial justice to the opposite party Nos. 1 to 4, then said decision making process can not be said to be flawless, rather, to be captioned as perverse. This court also by order dated 4th October, 2016, only to allow opportunity of substantial justice has given liberty to the opposite party Nos.1 to 4 to submit "better particulars", so that the impugned act of condonation of delay by learned Court below could have been construed in proper perspective. But the liberty could not be utilised by the opposite parties to develop the merit. In the suit the opposite parties had no defence in opposition to the prayer of partition sought for by the petitioner in the Title Suit No.45 of 1988. In the written statement dated 2nd March, 1989 the opposite party No.1 being guardian mother of her the then minor son opposite party No.2 they admitted due execution and registration of the deed of gift in favour of the petitioner on 17th January, 1985 in favour of the petitioner. They also asserted that they were unnecessary parties to said partition suit since they had no more share in the property covered by said Title Suit 45 of 1988. The opposite party No.2 after attaining majority sometimes in 1991, long after about 16 years attempted to scrap their earlier written statement dated 02.03.1989, which though was rejected did not adopt any higher forum. Eventually their fresh written statement dated 1st October, 2007 also was rejected by order dated 20.12.2007, which also remained unchallenged.
30. That apart, even if any worst view is assumed about impugned deed of gift dated January 17, 1985, challenge on which was taken in the grounds of Title Appeal 1 of 2014 under reference since it was executed by guardian mother for self and her minor son (Nemai Lala) at best the same could have been a voidable document so far as share of the then minor which would have been actionable under Law. Article 60 of the Limitation Act, 1963 provides:-
"60. To set aside a transfer of property made by the guardian of a ward (a) by the ward who has attained majority."
The opposite party No.2 was born in 1973. Thereby he attained majority sometimes in 1991. So he had opportunity also to challenge said deed of gift, at least so far as his own share within 1994. Therefore, from angle of this vision the allegation against the deed, has become hopelessly otherwise barred under Article 60 of the Limitation Act. Therefore, there was also no vitiation of trial of the suit for not appointing Court guardian on behalf of opposite party No.2. Learned Court below when weighing the grounds of appeal should not ignore all these aspects. The statements of opposite parties in the name of "better particulars" made in Para-15 onwards can be some pleas to make attempt in filling up lacunas, but, those pleas do not earn credence as sufficient cause, far to speak of incurring satisfaction of the Court, since prior to taking steps on December 18, 2008 in another Title Suit No.276 of 1996 filed by some other, the opposite party Nos.1 and 2 in the instnt Title Suit No.45 of 1988 attempted unsuccessfully to reject their earlier written statement dated March 2, 1989 since last part of March, 2007, and having suffered by rejection Order of the Trial Court one after another upto December 20, 2007, all of those were accepted without making challenge. Those all unsuccessful attempts were also made beyond the prescribed period of limitation, which can not speak about their bonafideness.
31. In view of above, the consideration of prayer of the opposite parties, who had no defence at all in the suit in opposition to the prayer of partition, does not have anything to justify on merit. Rather learned Court below in such peculiar nature of fact and circumstance has misplaced the concept of justice oriented approach. When there was no defence in opposition to the suit for partion, and when the petitioner by virtue of the contested decree against others has accrued an executable right enforceable through process of law, admitting an appeal by condoning the deliberate delay to their knowledge would only mean either a remand bound fate of the suit by setting the contested judgment, or dismissal of the appeal for want of no case or evidence led by the opposite parties in opposition to the prayer of partition.Learned Judge also failed to take note that the opposite party Nos.1 and 2 asserted themselves on March 2, 1989 as unnecessary parties to the partition suit and they had no share in the suit property. So, what they would say more in appeal if after its admission it would continue for some years to come. Alternatively if such an application with all above circumstances, is to answer in the affirmative extending liberal approach only for admitting Title appeal 1 of 2014 at the instance of such opposite party Nos.1 to 4 then I am afraid of whether there is any further necessity of keeping existence of the relevant provision either in the Limitation Act or in the Code.
32. In view of above, I hold that the decision making process held by learned Court below suffers from thoroughly perverseness since learned judge did not appreciate the admitted materials lying with the record to negate the pretended plea of the opposite parties. Otherwise bar under Article 60 of Limitation Act, as discussed above, was also not taken into account. Learned Court below to extend liberal approach got derailed from the cardinal principles that he who seeks equity must do equity by coming with clean hands. The act, action and deliberate conduct of the opposite parties were of unclean hands with the only motive, if, by any means, the deed of gift dated 17th January, 1985 could have been put into question resiling from earlier assertions made in the written statement dated 2nd March, 1989! Therefore, within the ambit of Article 227 of the Constitution of India, interference is made to wipe out the injustice suffered by the petitioner by the order No.30 dated 22nd March, 2016 in allowing the application of the opposite parties under Order 41 Rule 3A of the Code of Civil Procedure read with Section 5 of the Limitation Act and to admit the appeal on payment of cost of Rs.500/-, which accordingly being held as perverse, is set aside and quashed, as even the statements of the opposite parties in the name of "better particulars" could not provide any better merit to supersede the materials supplied by the petitioner by which the Court could have thought, even for a fraction of moment, for sustaining the order under challenge.
33. The revisional application being C.O.3745 of 2016 is allowed.
Stay order passed by this Court on 4th October, 2016 is made absolute, since as a consequence of setting aside the order No.30 dated 22nd March, 2016 passed by learned Additional District Judge 2nd Court, Contai, Purba Medinipur in Title Appeal No.1 of 2014 there is no more appeal, against the Judgment and decree dated 21st of March, 2011 in Title Suit No.45 of 1988 (renumbered from Title Suit No.75 of 1986), at the instance of the opposite party Nos.1 to 4, since time barred.
No order also costs in view of close relationship between the parties.
Urgent photostat xerox certified copy be supplied to the parties, if applied for.
Department is directed to communicate a copy of this order to both the Courts below at Contai.
(Mir Dara Sheko. J.)