Calcutta High Court (Appellete Side)
Sandip Mukherjee vs Mr. Irshad Ali Khan And Another on 24 January, 2018
1 24.01.2018
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Item No. 6C.O. 54 of 2018 Sandip Mukherjee Vs. Mr. Irshad Ali Khan and another.
Mr. Partha Pratim Roy, Mr. Dyutiman Banerjee.
... for the petitioner.
Mr. Sibasish Ghosh, Mr. Gautam Das.
... for the opposite parties.
The present revisional application has been filed by the defendant/judgment debtor/petitioner challenging an order dated 23rd November 2017 passed by the learned Civil Judge (Senior Division), Small Causes Court, Sealdah in Miscellaneous Appeal No. 1 of 2017 affirming an order dated 26th April 2017 passed by the learned Civil Judge (Junior Division), 1st Court, Sealdah in Miscellaneous Case No. 70 of 2011.
It is not in dispute that a suit for eviction was filed by the plaintiffs/opposite parties against the petitioner, inter alia, on the ground of default and reasonable requirement. It is also not in dispute that after receiving the summons the petitioner appeared in the said suit through Mr. Kripanath Chakraborty, learned advocate, who filed Vakalatnama. Subsequently, no steps were taken by the petitioner, which resulted into an ex parte decree passed by the trial court.
2An application under Order IX Rule 13 of the Code of Civil Procedure, which gave rise to registration of Miscellaneous Case No. 70 of 2011, was filed along with an application for condonation of delay. The trial court dismissed the said application thereby refusing to condone the delay. As a resultant effect, the said miscellaneous case was also dismissed. The petitioner preferred an appeal before the appellate court, which stood dismissed affirming the order of the trial court.
The learned advocate for the petitioner submits that both the courts below have wrongly held that the petitioner has not made out a sufficient cause in not taking steps in the suit without adverting to the circumstances narrated therein in pragmatic manner. He further submits that the trial court refused to rely upon the medical certificate as the same was not marked as exhibit and erroneously held that the petitioner has failed to prove, by a single document, the grounds narrated therein. He also submits that the appellate court has simply affirmed the findings of the trial court without venturing to decide the appeal independently and on the basis of separate findings.
On the other hand, the learned advocate for the plaintiffs/opposite parties submits that the trial court did not find the cause shown to be sufficient for the purpose of condonation of delay and such finding was affirmed by the appellate court and, therefore, the High Court in exercise of powers under Article 227 of the Constitution of India should not interfere with the concurrent finding of facts. It is further submitted that the court should not condone the delay, as a lenient and/or sympathetic approach is required to be made in this regard but must find out whether a plausible ground has been made out justifying the condonation and placed reliance upon a judgment of the Apex Court in case of Lanka Venkateswarlu (D) by LRs. vs. State of A.P. & Ors., 3 reported in 2011 (2) Indian Civil Cases 515. It is further submitted that the court is obliged to dismiss the application for condonation of delay if the applicant lacks bona fide and the negligence can be attributed to his conduct, as held in case of H. Dohil Constructions Company Private Limited vs. Nahar Exports Limited and another, reported in (2015) 1 Supreme Court Cases 680. It is, thus, submitted that the impugned orders do not deserve any interference as the petitioner has failed to make out any sufficient cause for his non-appearance.
On the rival contention of the respective counsels, there is no hesitation in my mind that the court has to find out the plausible and convincing grounds occasioning the delay in filing the application within the statutory period of time. It is equally true that the length of delay is not material but what must swayed the mind of the learned Judge is the sufficient cause made out therein. Even a delay of shorter period cannot be condoned in absence of sufficient cause. On the other hand, the delay of longer period deserves to be condoned if the sufficient cause is made out.
The approach of the court should not be hyper technical or such to find fault in the applicant for the purpose of dismissing the application for condonation of delay. If the sequence of events can be inter-linked and such events are probable in normal course of affairs, the pedantic and hyper technical approach should be avoided. No applicant can be said to be free from any blame but the magnitude of such lapses should not overshadow the substantial justice and the cause to be decided on merit. The meritorious matter should not be allowed to be defeated and dismissed on the anvil of limitation and encouragement must be made for determining the rights of the parties on merit.
4The Apex Court in case of Lanka Venkateswarlu (supra) have categorically reiterated the aforesaid principles, which can be seen from paragraph 20 and 22, which are quoted hereunder:
"20. In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
22. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra) as follows:
"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a resu8lt of his acting vigilantly.""
There cannot be any quarrel to the proposition of law that in the garb of the 'liberal approach', 'justice oriented approach' and 'substantial justice', the unmeritorious matter should not be 5 allowed to defeat and destroy the object and purpose of enacting the law of limitation. If the delay is properly explained and appears to be probable, the court should condone the delay and determine the matter on merit.
In case of H. Dohil Constructions Company Private Limited (supra), the Apex Court held that no presumption can be drawn to deliberate causation of delay but the gross negligence and the laches on the part of the counsel or the litigant is to be taken note of. It is further held that the lack of bona fide imputable to a party is also one of the relevant factor. It is, thus, held that if the explanation offered to be concocted or the grounds are fanciful, the court should be vigilant not to expose the other side unnecessarily to face such litigation.
There is no ambiguity to the proposition of law as laid down in the aforesaid reports. Each case has its unique features and facts, which largely varies from case to case. There cannot be a similarity in the facts and, therefore, the court should scrutinize each fact with great caution and circumspection.
The petitioner has stated in the application for condonation of delay that after receiving the summons, he instructed the learned advocate to appear and to take steps in the matter and was informed that the next date is fixed on 30th July 2010. It is further stated that he met with the said learned advocate on the said date and was informed that no step is required to be taken as the Bar Association has taken a resolution that its members shall refrain from participating in any judicial proceeding. It is stated that subsequently the father of the petitioner died as he was suffering from various ailments since September 2010 and because of some disputes over the property, the petitioner was compelled to keep his wife in another accommodation till April 2011. It is further stated that from April 2011 he suffered with a 6 lumber spondilosis and was advised by the Doctor to take bed rest till 15th June 2011 and also produced medical certificate in this regard. In the third week of September 2011, after he resumes normal work, he was informed that an ex parte decree has been passed against him as he did not take any steps and immediately after getting such information the inspection was made and the application for setting aside the ex parte decree was filed after delay of 103 days.
The trial court dismissed the application for condonation of delay solely on the ground that though the medical certificate is annexed to the said application but the Doctor was not examined by it and further held that the delay has been not properly explained and appears to be casual in nature. The appellate court, however, observed that since the medical certificate was not marked as exhibit, therefore, because of the lack of proper prove, the delay does not appear to be convincing and affirmed the order of the trial court.
Both the courts below appears to have been swayed by the fact that the medical certificate, which is annexed to the revisional application and forms part of the record, was not marked as exhibit as the Doctor, who issued the same, was not called as a witness. It further appears that an application was taken out by the petitioner so that the Doctor, who issued the said medical certificate, be examined through Commission but the said application was ultimately dismissed by the trial court and a challenge was made to this Court. While disposing of the revisional application, a liberty was given to the petitioner to withdraw the said application and to file afresh, if so advised.
Be that as it may, since the court did not take into account the medical certificate produced by the petitioner into an account, 7 let me examine whether the aforesaid observations of the courts below can be sustained.
It is evident from the record that no written statement to the application under Section 5 of the Limitation Act has been filed by the plaintiffs/opposite parties. The objection appears to have been filed against the application under Order IX Rule 13 of the Code, which forms part of the annexure to the revisional application. It does not appear from the order passed by the trial court as well as the appellate court that the plaintiffs/opposite parties adduced any evidence on the application under Section 5 of the Limitation Act. The petitioner was examined by the court and astonishingly the trial court dismissing the said application not only on the ground that the explanation is not proper and casual in nature but also that the courts are flooded with litigation and apparently the litigants are very casual in their approach in coming before the court.
There is no finding recorded on the merit of the grounds made out for condonation of delay. In absence of any specific challenge to the medical certificate, the court should not be too hyper technical in not considering the statements made on oath, which goes uncontroverted and unchallenged. It is the satisfaction of the court, which should be paramount. Even this Court considers the stand taken in the written objection to the application under Order IX Rule 13 of the Code, the Court does not find that there is any challenge thrown on the medical certificate produced by the petitioner.
The averments made in paragraph 8 of the said written objection simply contains the statement that the story of illness and problem in the family matters is a pure myth as the petitioner was all along residing at the suit premises. If a person has suffered from decease and was advised by the attending Doctor to take bed 8 rest, the court must apply the doctrine of non-traverse, as such statement has not been controverted and/or denied specifically by the plaintiffs/opposite parties. The court must apply a pragmatic and liberal approach in considering the grounds taken as sufficient cause for non-appearance.
Order IX Rule 13 of the Code has two parts; firstly, where the allegations is that the summons has not been served, the application can be taken out within thirty days from the date of the knowledge of the ex parte decree and secondly, where the defendant was prevented by sufficient cause in appearing on the date when the ex parte decree is passed, he must file the application within the statutory period provided under Article 123 of the Limitation Act.
Admittedly, the present case is of second eventuality and naturally the limitation would reckon from the date when the ex parte decree is passed by the court and not from the date of knowledge of the ex parte decree. If the delay is explained to the extent that the applicant was unaware of the happenings in the suit, the court should consider the same rationally treating the same as sufficient cause instead of dismissing the application for condonation of delay.
Both the courts have not adverted the matter in the manner as indicated herein above. This Court, therefore, set aside both the orders impugned in the instant revisional application. As a consequence thereof, the application for condonation of delay stands allowed subject, however, to the payment of costs assessed at Rs. 50,000/- to be paid to the advocate-on-record of the opposite parties within two weeks from date.
Apart from the same, the petitioner shall also pay the arrears rent amounting to Rs. 2,55,000/- along with the statutory 9 interest at the rate of ten per cent to be calculated from the date of institution of the suit within two weeks from date.
The aforesaid amount shall be received by the plaintiffs/opposite parties without prejudice to their rights and contention nor shall be treated as waiver of the grounds for default taken in the said suit.
Subject to the compliance as above, the trial court is directed to hear out the application under Order IX Rule 13 of the Code and shall dispose of the same within two weeks from the date of communication of this order.
In the event of non-compliance of the conditions, as indicate above, this order shall stand automatically recalled and the order of the trial court shall revive.
With these observations, the revisional application is disposed of.
There shall, however, be no order as to costs.
ab (Harish Tandon, J.)