Calcutta High Court (Appellete Side)
Nilmadhav Ghora vs Arjun Kumar Dutta & Anr on 9 January, 2017
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee R.V.W. No. 317 of 2016 in C.O. No. 2085 of 2013 With CAN No. 9579 of 2016 With CAN No. 9580 of 2016 Nilmadhav Ghora
-vs-
Arjun Kumar Dutta & Anr.
For the petitioner : Mr. Joydeep Kar,
Mr. Rajdeep Bhattacharya.
For the opposite parties : Mr. Mrinal Kanti Ghosh.
Heard on: : 21-12-2016
Judgment on: : 09.01.2017
Indrajit Chatterjee, J:- In this application, being CAN No. 9579 of 2016, as filed by the petitioner, Nilmadhav Ghora, i.e. the defendant of Title Suit No. 122 of 1995 pending before the learned Civil Judge (Junior Division), 3rd Court, South 24 Paraganas at Alipore, has prayed for condonation of delay to the tune of 86 days under Section 5 of the Limitation Act as the review application could not be filed earlier because of his ill health.
Mr. Kar, the learned Senior Advocate, appearing on behalf of the petitioner took me to paragraph 8 of this application to substantiate the claim of his client that during those days because of his illness, his client was not attending his sweetmeat shop which is located in the suit premises and the shop was being managed by his staff and when the notice of the revisional application of Civil Order No. 2085 of 2013 came to be served by the postal authority, then the postal authority did not hand over the notice to the staff. Mr. Kar took me to the photocopy of one prescription issued by Dr. Somnath Pal dated 16-03-2016 to convince this Court that this petitioner was suffering from Sciatica during the period from 30-01-2016 to 15-03-2016.
Mr. Kar cited a decision of the Apex Court as reported in (1987) 2 SCC 107 (Collector, Land Acquisition, Anantnag & Anr. -vs- Mst. Katiji & Ors.) wherein the Apex Court in paragraph 3 opined that a litigant does not stand to benefit by lodging one appeal late, that refusal to condone delay may result in meritorious matter being thrown out, that the theory of "every day's delay must be explained" does not mean that a pedantic approach should be made, that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, that there is no presumption that delay is occasioned deliberately or on account of culpable negligence and further that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so.
Learned Advocate also took me to Section 5 of the Limitation Act to convince this Court that review application should not be equated to that of an application under Order IX Rule 9 of the Code of Civil Procedure wherein the previous conduct of the litigant may be considered in coming to a conclusion to set aside the ex parte order. He contended that here, only one point is to be considered by this Court as to whether the prayer of the petitioner for registering this review application can be taken up by this Court with the satisfaction of the court that the present petitioner had sufficient cause for not preferring the appeal for making application within such period.
He took me to paragraph 11 of this application to convince this Court that there was no intentional delay on the part of the present petitioner as he took up the matter with one Advocate of this court, after he came to know regarding the order passed in that Civil Order and applied for certified copy of the order and after going through the order, he decided to prefer this review application as the period for filing of the application for restoration expired on 15th June, 2016.Learned counsel further submitted that there is a delay of 86 days and that a liberal approach be taken by this Court in view of the decision of the Apex Court as pending Mst. Katiji (supra) wherein the Apex Court came out of the previous theory that each day's delay must be explained. He further contended that in answering this application under Section 5 of the Limitation Act, this Court cannot go beyond 17-05-2016 (date of disposal of that Civil Order) and this Court must restrict itself as regards the conduct of the petitioner after 17-05- 2016 and no back calculation or previous conduct of this petitioner can be considered by this Court while disposing of this application under Section 5 of the Limitation Act.
In counter to all these, it is submitted by Mr. Ghosh, learned Advocate appearing on behalf of the opposite party that the petitioner has not come in clean hands to get any discretionary order under Section 5 of the Limitation Act. He took me to paragraph 7 of the application to convince this Court that this petitioner was well aware regarding the pendency of the Civil Order and that by taking me to paragraph 11 of the application under Section 5 of the Limitation Act, he submitted that he was watching the proceeding very closely and he could have filed the review application in time but has filed this review application after a long gap just to harass the present opposite party/landlord. He also took me to his affidavit-in-opposition as filed on 17th December, 2016 which contains the certified copy of the depositions recorded by the learned Trial Court in respect of this petitioner who figured as D.W-1 before that court to say that this petitioner duly attended the court on 18-01-2016, 22-04-2016 and also on 12-05-2016.
He also took me to the envelope which is the part of the proceeding of the Civil Order No. 2085 of 2013 to show that this petitioner refused to receive the notice on 15-04-2016 and at that point of time, he was not bed-ridden as per the prescription relied upon by the petitioner. He further contended that the application under Section 5 of the Limitation Act is not bona fide one as the petitioner had knowledge regarding the pendency of the Civil Order and also the disposal of the said Civil Order. He concluded his argument by saying that there is no convenient ground to satisfy this Court that the petitioner was prevented from filing one application for review within the prescribed period.
In reply, Mr. Kar took me to paragraphs 7 and 11 of the application under Section 5 of the Limitation Act to say that paragraph 7 is as regards the knowledge regarding pendency of the revisional application and paragraph 11 is as regards the knowledge of the petitioner after the order was passed in that Civil Order. Thus, he contended that there is no conflict in between paragraph nos. 7 and 11. He also contended that the knowledge as regards paragraph 7 was not believed by this Court while disposing of that Civil Order and as such, second service was sought for. He concluded his reply by saying that the medical certificate is not contrary to the dates on which this petitioner deposed before the learned Trial Court, i.e. on 18-01-2016, 22-04-2016 and 12-05-2016 and as per that prescription, the petitioner was bed-ridden from 30-01-2016 to 15-03-2016.
I have taken into consideration the argument put forward by the learned advocates appearing for the parties, the decision of the Apex Court as passed in Mst. Katiji (supra) and also the entire facts and circumstances of this case before this court now and which was before it in connection with Civil Order No.2085 of 2013. It may be mentioned that the said Civil Order was disposed ex parte by this Court as per Order dated 17.05.2016.
The prelude is that one suit for eviction was filed by the predecessors in interest of the present opposite parties before the Civil Judge, Junior Division, 3rd Court, South 24 Parganas at Alipore for eviction of the present petitioner in respect of the suit property which is a sweet meat shop on the ground stated in the plaint of that suit. The suit was registered as Title Suit No.122 of 1995. It is unfortunate to note that the said litigation is still pending even though more than two decades have passed and the original plaintiff died in the meantime.
It is true that substantial justice is to be administered but at the same time the court must take into consideration the delay in disposal of a civil suit and I can safely say that in every suit for eviction the tenant is only interested to drag the case and as such the petitioner may be held responsible for the delay in disposal of that litigation.
The matter came up before this court in an application under Section 227 of the Constitution of India which was registered as C.O. No.2085 of 2013 wherein the order dated 14.05.2013 passed by the learned trial court was assailed before this Court wherein the learned trial court as per the order impugned was pleased to reject the prayer of the opposite parties, the substituted plaintiffs as made under Section 17 (3) of the West Bengal Premises Tenancy Act relying upon its own order dated 28.08.2008 as passed under Section 17 (2) of the West Bengal Premises Tenancy Act, 1956.
It is also pertinent to mention here that this petitioner/defendant deposited rent in respect of the suit shop in the name of the original plaintiff namely Baidya Nath Dutta, who died on 18.11.2008 and as per the present opposite parties all such deposits were bad in law as those were deposited in the name of a dead person and that such death was very much within the knowledge of the present petitioner.
This court disposed of that Civil Order and held that all such deposits were bad in law as those were deposited in the name of the erstwhile plaintiff who died long before such deposits were made and as such this Court further held that it cannot be said that the order under Section 17 (2) of the said Act of 1956 was duly complied with. This petitioner did not contest the said Civil Order even though one speed post letter was issued to him in the correct address and the postal peon endorsed that this petitioner refused to accept the said speed post letter and as such this Court while disposing of the said Civil Order held that it was a good service.
It is true that every application under Section 5 of the Limitation Act is to be disposed of liberally but at the same time the intention of the present petitioner must be assessed by the court and if the court finds that the intention of the petitioner was/is to drag the litigation then no favourable order can be passed in his favour. Be it mentioned that an order under Section 5 waiving the period of limitation is one discretionary order and that discretion must be exercised in favour of the party who has come before the court in clean hands.
I am not at one with Mr. Kar that in assessing this application under Section 5 of the Limitation Act, the court cannot see the conduct of the present petitioner before filing of this application under Section 5 of the Limitation Act. This Court is competent enough to see as to whether this petitioner was vigilant enough in proceeding with the litigation.
The principle laid down by the Apex Court in the decision referred to above goes to show that a liberal approach is to be taken but such liberal approach can only be shown to such a litigant who is interested to end the litigation and not to drag it. Here this petitioner came up with this review application after 86 days of the statutory period of limitation with a prayer under Section 5 of the Limitation Act to condone the delay.
The prescription of the doctor dated 16.03.2016 shows that this petitioner was under treatment from 30.01.2016 to 15.03.2016. The supplementary affidavit filed by the opposite parties shows that this petitioner duly attended the trial court on 18.11.2016, 22.04.2016 and 12.05.2016 but it is true that all these days are not within the period of his ailment. The record of the Civil Order under reference shows that it was filed before this Court on 06.08.2013. Paragraph No. 7 of the application under Section 5 shows that this petitioner was very much aware regarding the pendency of the Civil Order and practically just to avoid the proceeding this petitioner build up a story that he became ill since the beginning of the year 2016 and was bed ridden.
Paragraph No.11 of the said application also shows that the petitioner on recovery contacted his advocate of the court below to come to know regarding the pendency of the revisional application. This claim is totally contrary to the claim of this petitioner as made in Paragraph No.7 of the application. This petitioner did not come up with the review application in time and allowed the period to be wasted just to drag the civil suit and has prayed for condonation of delay of as many as 86 days.
It is true that the court has power to condone the delay of more than these days but the satisfaction of the court is a factor to see whether discretion is being exercised in favour of a genuine person. On scrutiny of the entire circumstance as depicted earlier this Court cannot say that this petitioner has come before this Court in clean hands to get the relief. It is true that each day's delay is not to be explained but the entire delay must be to the satisfaction of the court to grant the relief as prayed for. I like to say that if I exercise my discretion in favour of this petitioner then I shall be showing favour to a person who is only interested to drag the litigation.
Thus, in view of my observation stated above myself is satisfied that no discretionary order can be passed in favour of this petitioner and as such this application under Section 5 of the Limitation Act is fit to be rejected and I do that.
Thus, this CAN-9579 of 2016 is answered in the negative and dismissed accordingly on contest.
There will be no order as to costs.
The delay being not condone, there is no question of reviewing the order passed by this Court on 17.05.2016 as passed in connection with C.O. No.2085 of 2013.
Department is directed to communicate this order to the learned trial court at once.
Certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Indrajit Chatterjee, J.)