C.O. 3745 of 2016. Case: Kishor Kumar Lala Vs Shrimatya Sandhya Lala and Ors.. High Court of Calcutta (India)

Case NumberC.O. 3745 of 2016
CounselFor Appellant: S.P. Roy Chowdhury, Debasish Ray and Usha Maity, Advs. and For Respondents: Rabindra Nath Mahato, Anindya Bhattacharya and Aritra Shankar Ray, Advs.
JudgesMir Dara Sheko, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order IX Rules 13, 9; Order XLI Rules 3A, 41; Section 24; Constitution of India - Article 227; Limitation Act, 1963 - Section 5
Judgement DateFebruary 06, 2017
CourtHigh Court of Calcutta (India)

Judgment:

Mir Dara Sheko, J.

  1. The application under Article 227 of the Constitution of India is filed by the plaintiff/respondent/petitioner (who will be called on hereafter as the petitioner) assailing order No. 30 dated March 22, 2016 passed by learned Additional District Judge, 2nd Court, Purba Medinipur at Contai in allowing the application under Order XLI Rule 3A read with Section 5 of the Limitation Act, 1963 and thereby admitting Title Appeal No. 1 of 2014 condoning the delay of 2 years 7 months, as is preferred by opposite party Nos. 1, 2, 3, 4 who were defendant Nos. 2, 3, 4 and 7 respectively in original Title Suit No. 45 of 1988. Said Title Suit No. 45 of 1988 (renumbered from Title Suit 75 of 1986) for partition, was decreed in preliminary form on March 21, 2011. The operative part of said preliminary decree is set out hereunder:-

    "In the result the suit succeeds in part. Court fees paid a sufficient. Hence, it is

    ORDERED

    That the suit is party decreed in preliminary form on contest against defendant Nos. 13, 14, 16 & 17 and ex parte against the rest without any cost. It is hereby declared that the plaintiff has 7/72 shares in the 'Ka' schedule property.

    It is further declared that the defendant No. 13 & 14 jointly have 3/4 shares only in plot Nos. 87 & 88 and 3/8 shares only in plot Nos. 90 & 92 of Mouja Monoharchak.

    It is also declared that the defendant Nos. 16 & 17 have 55/72 shares only in plot Nos. 88, 89 & 90 of Mouza Subdi".

  2. Since learned Additional District Judge upon hearing both sides condoned the delay by order No. 30 (Supra), the penultimate portion of the impugned order is also set out hereunder:-

    "Here, I find a prima facie case on the part of the appellants, so I rely on the observation held in 2014 (iv) Indian Civil Cases 733 wherein it has been observed that the delay may be condoned if there is a prima facie merit for adjudication of the issues and a litigant should not be ousted from the Court of Law on technical ground of limitation but if there is prima facie merit for adjudication, delay should be condoned. I also relied on the observation held in (2005) 3 Supreme Court Cases 752 wherein it has held that expression sufficient cause should be considered with pragmatism in a justice-oriented approach rather than the technical cause for explaining every day's delay. I also rely on the observation held in A.I.R. 1989 GUJRAT 227 wherein it has been observed that "the ultimate object of the procedural law is to see that substantial justice is done to the parties. Hence, it should be endeavour of the Court to see that the disputes are resolved as far as possible on merits in just, fair and reasonable manner. Victory or defeat on technical grounds should oridinarily be avoided and discouraged".

    The case laws cited by the respondents do not attract the facts and circumstances of this appeal".

  3. Mr. Roy Chowdhury, learned senior Advocate for the petitioner inviting attention to this Court's order dated 04.10.2016 submitted that the causes as were shown by the opposite parties in their initial application for condonation of delay of 2 years 7 months i.e. 940 days in preferring the Title Appeal No. 1 of 2014 were neither sufficient nor satisfactory, this Court has given opportunity to the opposite parties to disclose the "better particulars, which occasioned the delay in filing the said appeal before the Court of Appeal below". But the particulars though filed by the opposite party Nos. 1 to 4 on 7th of November, 2016 it did not develop the merit of their case. Mr. Roy Chowdhury further inviting attention to copies of different documents annexed with the counter affidavit dated 29.11.2016 submitted that the causes of delay as alleged were false, mala fide and based on untruthful statements, which are liable to be rejected.

  4. Mr. Roy Chowdhury further argued that in the suit, the opposite parties had engaged Advocate and Power of Attorney respectively and the suit was looked after not only by opposite party No. 1, but also by others and ultimately the opposite parties chose not to contest since on executing the deed of gift in favour of the petitioner by his mother i.e. opposite party No. 1 for self and guardian mother of opposite party No. 2 admittedly they had no more share in suit property, and, that is why the preliminary decree was passed on contest against the contesting defendants of the suit and ex parte against the rest. Thus, submitting of having no case of the opposite party Nos. 1 to 4 for adjudication, criticising the impugned order as perverse rendering complete injustice in the midst of the process of Final Decree prayed to allow the revision setting aside the impugned order.

  5. Mr. Rabindra Nath Mahato, learned Advocate for the opposite party Nos. 1 to 4 argued that order of refusal or grant to condone delay in a civil proceeding is upto the discretion of the Court. Submitted, if there are good causes to the satisfaction of the Court, and when learned Additional District Judge taking note of meritorious case of the opposite parties applied liberal approach to admit the Title Appeal in condoning the delay, the Revisional Court should not interfere with such discretionary order. Mr. Mahato particularly referred to paragraph Nos. 15, 16, 17 & 18 of Affidavit on 07.11.2016 sworn on behalf of opposite party No. 1 to 4 filed before this Court, which are set out below:-

    (a). That since written statement filed by my mother and myself in Title Suit No. 45 of 1988 was not accepted, on December 18, 2008 my mother, the opposite party No. 23 and myself filed an application in Title Suit No. 276 of 1996, inter alia, prying for our transposition as plaintiffs, which was allowed on May 13, 2009. That these opposite parties were under the impression that the Title Suit No. 276 of 1996 is a comprehensive suit and if such suit is decreed, these opposite parties would get complete relief.

    (b). That the Title Suit No. 276 of 1996 was not stayed and on March 16, 2016 the same has been decreed in appeal being Title Appeal No. 27 of 2013. That the decree passed in Title Appeal No. 27 of 2013 has been challenged before this Hon'ble High Court at Calcutta by filing a second appeal and the same is pending adjudication before this Hon'ble Court.

    (c). The petitioner contested Title Suit No. 276 of 1996 and Title Appeal No. 27 of 2013 and the Title Suit No. 276 of 1996 was not stayed, these opposite parties were, accordingly, under the impression that the petitioner is not giving much importance in Title Suit No. 45 of 1988. That in such circumstances these opposite parties concentrate themselves in Title Suit No. 276 of 1996 and Title Appeal No. 27 of 2013 and when on December 16, 2013 for the first time they came to know about the decree passed in Title Suit No. 45 of 1988, Title Appeal No. 1 of 2014 has been filed.

    (d). That since these opposite parties were not aware about the decree passed in Title Suit No. 45 of 1988, these opposite parties could not file Title Appeal No. 1 of 2014 in time and there is delay of about 2 years 7 months in filing such appeal.

  6. Mr. Mahato also relied on the following cases in support of his submission that always lenient approach should be taken in condoning the delay for rendering substantial justice.

  7. AIR 1989 CALCUTTA 91

    DULAL CHANDRA OJHA Vs. BANAMALI GUCHAIT

  8. (1998) 1 CALCUTTA LJ 22

    PRATIMA MONDAL Vs. DHARIDNAR MONDAL

  9. (2001) 6 Supreme Court Cases 176

    M.K. PRASAD Vs. ARUMUGAM

  10. (2003) 10 Supreme Court Cases 691

    MITHAILAL DALSANGAR SINGH AND OTHERS Vs. ANNABAI DEVRAM KINI AND OTHERS

  11. (2004) 7 Supreme Court Cases 482

    GANESHPRASAD BADRINARAYAN LAHOTI Vs. SANJEEVPRASAD JAMNAPRASAD CHOURASIYA AND ANOTHER

  12. Since appreciation of law of Limitation in the case mostly are oriented with facts let the revisional application be decided on the following considerations:-

    (a) Whether in exercising power of superintendence under Article 227 of the Constitution of India, this Court should interfere with the impugned order?

    (b) Whether the order impugned suffers from perverseness in the process of decision making by ignoring some relevant facts on record? Or,

    (c) Whether the "better particulars" supplied by the opposite parties are acceptable in not disturbing admission of Title Appeal 1 of 2014 by condoning the delay?

    (d) Whether the order impugned should be upheld, or to be set aside.

  13. I have gone through the decisions cited at the bar and also materials on record including the affidavit submitted on behalf of the opposite parties No. 1 to 4 involving "better particulars", leave for which was granted by the Court and the affidavit of the petitioner against the affidavit of the opposite parties No. 1 to 4.

  14. At the very outset, it can be said that the Provision adumbrated in Rule 3A of Order 41 of the Code of Civil Procedure is virtually a replica of Section 5 of the Limitation Act, 1963 in some elucidated form with additional 3 separate clauses. But in both the cases the main matter must have to be accompanied with an application supported by affidavit explaining the reasons of delay in filing the main matter, be it an appeal, or...

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