Calcutta High Court (Appellete Side)
Sachindra Nath Mondal & Anr vs Shakuntola Malhotra & Ors on 14 March, 2016
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24.
14.03.2016
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In the High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
S.A.T. 525 of 1994
+
C.P.A.N. 861 of 2014
With
C.R. 1967(S) of 1994
With
C.R. 1894(S) of 1996
+
C.A.N. 11788 of 2014
Sachindra Nath Mondal & Anr.
Vs.
Shakuntola Malhotra & Ors.
Mr. Priyabrata Mukherjee,
Mr. Sk. Nizamuddin,
Mr. Sahabuddin Sardar,
Mr. Murari Chakraborty,
Mr. Prasanta Pathak
.....for the appellants
Mr. Subhas Chandra Basue,
Mr. Nitish Kumar Ghosh
......for the respondent no. 12
In Re.: C.A.N. 17788 of 2014 In this application, the appellants in the second appeal, have prayed for recalling of the order dated September 10, 2013 passed by a learned Single Judge of this Court dismissing the Civil Rules, being C.R. No. 1967 (S) of 1994 and C.R. No. 1894 (S) of 1996, after 2 condonation of delay of 451 days in preferring the present application.
In so far as C.R. No. 1967 (S) of 1994 is concerned, the same was issued, in an application filed by the appellants, by the Division Bench of this Court on September 14, 1994 calling upon the opposite parties to show cause as to why during the pendency of the appeal, they should not be restrained by an order of injunction from executing the decree obtained in Title Suit No. 81 of 1983 of the learned first appellate Court as also from selling, assigning and transferring the suit property. In the said application on September 14, 1994, the Division Bench also passed an interim order of injunction till the disposal of the Rule.
In so far as C.R. No. 1894 (S) of 1996 is concerned, the same was issued, in an application filed by the appellants, by a learned Single Judge of this Court on August 28, 1996 calling upon the opposite parties to show cause as to why they should not be restrained by an order of injunction restraining them from making any construction over the suit property, etc. On September 10, 2013, when both the aforementioned applications filed by the appellants appeared before the learned Single Judge of this Court, none appeared on behalf of the appellants/petitioners and both the Civil Rules stood dismissed for 3 default. As recorded above, it is the said order dated September 10, 2013, which the petitioners are praying to be recalled. According to the petitioners, the passing of the said order dated September 10, 2013 dismissing both the said Civil Rules came to the knowledge of their advocate on November 03, 2014 when their application for contempt, being CPAN 861 of 2014, was taken up for hearing by a learned Single Judge of this Court. After the learned advocate of the petitioners came to know of the passing of the said order of dismissal dated September 10, 2013, he informed the petitioners of the said order and thereafter, the present application was filed on December 05, 2014.
It is the case of the petitioners in their application that the learned advocate-on-record engaged by them, Shri Sahabuddin Sardar fell seriously ill in the year 2010 and he underwent multiple operations for which he could not regularly attend the Court from 2010 to 2013. In order to substantiate the illness of their advocate, the petitioners have disclosed the medical prescriptions of their said advocate in the supplementary affidavit filed by them. Mr. Mukherjee, the learned counsel appearing for the petitioners submitted that in the present case it was only due to the illness of the learned advocate-on-record of the petitioners, which resulted in delay of the petitioners acquiring knowledge of the passing of the said order of dismissal dated September 10, 2013 and 4 the actions of the petitioners in the present case are not at all negligent. According to Mr. Mukherjee, when the petitioners have substantiated the reasons for the delay in preferring the present application for recalling of the order dated September 10, 2013 this Court should condone the delay in preferring the present application as prayed for by the petitioners.
However, Mr. Bose, the learned counsel appearing for the respondent no. 12, the sole contesting respondent in the appeal, placed reliance on the decisions of the Supreme Court in the cases of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649 and H. Dohil Constructions Company Private Limited vs. Nahar Exports Limited & Anr., reported in (2015) 1 SCC 680 and submitted that the petitioners have not made out a bona fide case for explaining delay in preferring the present application and, as such, the application of the petitioners should be dismissed.
I have considered the facts and circumstances of the case as also the rival contentions of Mr. Mukherjee and Mr. Bose, the learned counsel appearing for the respective parties. No doubt, in the said decisions of the Supreme Court in the cases of Esha Bhattacharjee (supra) and H. Dohil Constructions Company Pvt. Ltd. (supra) cited on behalf or the respondent no. 12, the Hon'ble Supreme Court held that when the conduct of an applicant under 5 Section 5 of the Limitation Act, 1963 is negligent or lacks bona fide, the Court should refuse to entertain the application for condonation of delay. However, in the present case, I find that the petitioners have substantiated the illness of their advocate-on-record by disclosing his medical certificates from the year 2010 for which he could not regularly attend the Court and the petitioners were not made aware of the dismissal of both the Civil Rules on September 10, 2013 by this Court. From the records it appears that it was only on November 03, 2014 when the petitioners moved the contempt application, against the respondent no., 12, for alleged violation of the interim orders dated September 14, 1994 and August 28, 1996 passed by this Court, their advocate came to know about the passing of the order dated September 10, 2013 dismissing both the said Civil Rules and thereafter, being informed by the said order dated September 10, 2013 the petitioners filed the present application.
Considering the facts and circumstances of the present case I do not find that the conduct of the petitioners can be held to be negligent and lacking bona fide. I am also of the opinion that the petitioners have sufficiently explained the facts, which prevented their advocate to be present before this Court on September 10, 2013.
6For all the foregoing reasons, the application, being C.A.N. 17788 of 2014 succeeds. The delay in preferring the present application is condoned and the order dated September 10, 2013 passed by the learned Single Judge of this Court dismissing the Civil Rules, being C.R. 1967 (S) of 1994 and C.R. 1894 (S) of 1996, stands recalled.
Let the Civil Rules, being C.R. 1967 (S) of 1994 and C.R. 1894 (S) of 1996 be restored to their respective original files and numbers. With the above directions, C.A.N. 17788 of 2014, stands disposed of.
There shall, however, be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)