Calcutta High Court (Appellete Side)
Md. Oli Sheikh (Since Deceased) & Ors vs Tarani Mahato & Anr on 5 August, 2010
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J (2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
C.O. No.3817 of 2005
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Md. Oli Sheikh (since deceased) & Ors.
Versus
Tarani Mahato & Anr.
For the Petitioners: Md. Jaimur Hossain,
Ms. Sibani Bhagat,
Sk. Afjal Hossain.
For the opposite parties: Mr. Hiranmoy Bhattacharya.
Heard On:03.08.2010.
Judgement On: August 5, 2010.
Prasenjit Mandal, J.: This application is directed against the
order no.12 dated June 24, 2005 passed by the learned District
Judge, Malda in Title Appeal No.28 of 2003 thereby rejecting an
application under Section 5 of the Limitation Act.
The plaintiffs/petitioners filed the Title Suit No.123 of
1992 for declaration of title, injunction and possession before
the learned Civil Judge (Junior Division), Second Court, Malda.
In that suit, the opposite parties contested the application by
filing the written statement. Upon taking evidence, the learned
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Civil Judge (Junior Division) decreed the suit. Thereafter, the
plaintiffs filed an appeal against the said decree along with an
application under Section 5 of the Limitation Act. That
application was rejected by the impugned order. So the applicants
have come up with this application for setting aside the order of
rejection of the application under Section 5 of the Limitation
Act.
Mr. Hossain, learned Advocate appearing on behalf of the
petitioners, submit that on 24.06.2005 the matter was fixed for
hearing the application under Section 5 of the Limitation Act
before the learned appellate court. On that day, the learned
District Judge heard both the sides and passed the impugned order.
No question arose as to adducing evidence by examining the
petitioner and the doctor who examined the plaintiff/appellant
no.4, Md. Kayesh Ali. Therefore, the appellants did not examine
any witness but tendered the documents by way of annexures to the
application under Section 5 of the Limitation Act. On the basis
of the application supported by annexures and the written
objection filed by the opposite parties, the learned District
Judge disposed of the application under Section 5 of the
Limitation Act rejecting the same. Therefore, the question of
adducing evidence did not arise at all but the learned District
Judge held a contrary view. He also contends that Md. Kayesh Ali
was the tadbirkar of the suit on behalf of the plaintiffs and as
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he was ill and he suffered from paralysis, he was not able to make
tadbir or file the appeal in time and as such the prayer for
condonation of delay had been made. The learned District Judge
should have allowed the application thereby admitting the appeal.
Mr. Bhattacharyya, learned Advocate appearing on behalf of
the opposite parties, vehemently objects to the contention raised
by the learned Advocate for the petitioners. He submits that in
fact, no evidence was adduced and so the learned appellate court
was right in dismissing the application under Section 5 of the
Limitation Act. He supports the order passed on the application
under Section 5 of the Limitation Act.
After due consideration of the submission of the learned
Advocate of both the sides and on perusal of the materials on
record, I find that the judgment was delivered on 06.01.2003 and
the application for getting the certified copy of the judgment and
decree was filed on 03.02.2003 and the same were ready for
delivery on 08.04.2003. The petitioners have filed one medical
certificate dated 23.07.2003 issued by doctor, Md. Zakir Hossain,
who examined the tadbirkar stating that Md. Kayesh Ali suffered
from paralysis and he was under his treatment from 27.02.2003 to
23.07.2003. The appeal was preferred on 24.07.2003. The opposite parties raised objection that the certificate was not genuine; but it was issued by the doctor on the request of the petitioners. The matter was heard on behalf of both the sides on the basis of 4 affidavits. So, unless and until any contrary evidence adduced on behalf of the opposite parties, I am of the view that there is no bar in taking the contention of the petitioners. Examination of the witnesses is not always necessary to consider an application under Section 5 of the Limitation Act. It depends upon the situation and also upon the rival contentions raised by the parties.
Having regard to the situation and fact that the tadbirkar suffered from paralysis and the delay in preferring the appeal for a very short period, I am of the opinion that the petitioners have shown sufficient cause for non-taking steps within the period of limitation. There was a delay of 3 months and 12 days in preferring the appeal. I am of the view that the delay for a very short period should have been condoned by the learned appellate court.
Mr. Bhattacharyya, appearing on behalf of the opposite parties, refers to the decision of Shyam Sunder Sarma Vs. Pannalal Jaiswal and Ors. reported in AIR 2005 SC 226 and submits that the decision reported in AIR 1976 Cal 415 (FB) is not at all a good law in view of the decision of AIR 1956 SC 367 as observed in AIR 2005 SC 226. Therefore, the petitioners should have preferred a second appeal against the rejection of the application under Section 5 of the Limitation Act. In this regard, I find that the ratio of the decision referred to in AIR 1956 SC 367 is altogether 5 different one from the appeal in question. The facts as stated in the AIR 2005 SC 226 are not also similar to those of the present one. Therefore, the contention of Mr. Bhattacharyya that against the order of rejection of the application under Section 5 of the Limitation Act, a second appeal would lie, I hold, cannot be accepted.
In view of what has been stated above, I am of the view that order impugned is not sustainable. It is, therefore, set aside. The application under Section 5 of the Limitation Act filed by the petitioners before the learned appellate court in Title Appeal No.28 of 2003 stands allowed.
The learned District Judge, Malda shall proceed with the Title Appeal No.28 of 2003 from the stage of allowing the application under Section 5 of the Limitation Act.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.
(Prasenjit Mandal, J.)