Calcutta High Court (Appellete Side)
Rina Das (Nag) vs The State Of West Bengal & Ors on 17 February, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
1 17.02.2017
.
ap CAN 464 of 2017
with
CAN 8713 of 2016
in
W. P. 6531 (W) of 2011
Rina Das (Nag)
Vs.
The State of West Bengal & Ors.
Mrs. Rupna Bhattacharjee Ray
... For the applicant/petitioner.
Mr. Biswabrata Basu Mallick
... For the State.
Let the affidavit-of-service filed in Court today be taken on record. This section 5 application is in connection with a restoration application taken out for the purpose of recalling an order dated 4th April, 2014, passed by this Court. By the said order dated 4th April, 2014, the contempt application was dismissed on the ground that it was evident that the applicant/petitioner was not interested in prosecuting the matter. For convenience, the order dated 4th April, 2014, is setout hereinbelow in its entirety: -
"This contempt application is pending in the list for quite sometime. Earlier, on 28th March, 2014, this matter was adjourned because of non-representation on the part of the applicant/petitioner. Today also, when the matter is called, no one appears in support of the contempt application.
It is quite evident that the applicant/petitioner is not interested in prosecuting the matter. In such circumstances, the instant contempt application is liable to be dismissed and is accordingly dismissed."
After the aforesaid order was passed, the applicant waited for almost one and half years for the purpose of filing a restoration application, being CAN 8713 of 2016, which was filed on 19th August, 2016. Thereafter, the instant section 5 application has been filed on 16th January, 2017, i.e., almost five months after filing of the restoration application.
Having regard to the averments made in the instant application, particularly, the statements made in paragraphs 4 and 5 and in the facts and circumstances of the instant case, the same cannot be held to be "sufficient cause" shown by the applicant/petitioner in order to explain such inordinate delay. In this context, 2 one may take notice of a judgment rendered by a Division Bench of this Court yesterday in FMAT 1091 of 1982 with CAN 7975 of 2016 (M/s. Serajuddin & Co. vs. Union of India & Ors.) where a clear distinction has been sought to be laid down with regard to a situation where there has been an inordinate delay and in a case, where the delay is for a few days. Whereas, in the case of former, prejudice likely to be caused otherwise is a relevant factor, in the case of latter no such consideration arises.
For reasons stated above, the section 5 application is liable to be dismissed and is accordingly dismissed.
In view of dismissal of the section 5 application, nothing remains to be adjudicated in respect of the restoration application, being CAN 8713 of 2016, which is accordingly dismissed.
(Biswanath Somadder, J.)