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Bhaktipada Majhi Vs. Sub-divisional Officer, Kalna and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1960 of 1967
Judge
Reported inAIR1971Cal204,75CWN555
ActsLimitation Act, 1963 - Section 5; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantBhaktipada Majhi
RespondentSub-divisional Officer, Kalna and ors.
Appellant AdvocateChandra Nath Mukherjee, Adv.
Respondent AdvocateChandi Das Choudhury and ;S.K. Kar, Advs.
DispositionRevision allowed
Cases ReferredBechi v. Ahsan
Excerpt:
- .....of the learned additional district judge, burdwan, condoning the delay in filing the opposite party's appeal under section 5 of the limitation act.2. the petitioner obtained a money decree against the opposite party in a money suit. the opposite party preferred an appeal against the said decree but the said appeal was filed 23 days beyond the prescribed period of limitation. accordingly, an application, purported to be under section 5 of the limitation act, was filed, praying for condoning the delay on the ground that the records of the case along with certifiedcopies of the judgment and decree which were received late, could not be sent to the government pleader in time for filing the appeal through sheer oversight of the dealing assistant. the learned additional district judge.....
Judgment:
ORDER

Amiya Kumar Mookerji, J.

1. This Rule is directed against the order of the learned Additional District Judge, Burdwan, condoning the delay in filing the opposite party's appeal under Section 5 of the Limitation Act.

2. The petitioner obtained a money decree against the opposite party in a money suit. The opposite party preferred an appeal against the said decree but the said appeal was filed 23 days beyond the prescribed period of limitation. Accordingly, an application, purported to be under Section 5 of the Limitation Act, was filed, praying for condoning the delay on the ground that the records of the case along with certifiedcopies of the judgment and decree which were received late, could not be sent to the Government Pleader in time for filing the appeal through sheer oversight of the dealing assistant. The learned Additional District Judge considered the above ground shown as sufficient and the-delay of filing the appeal was condoned. The petitioner, being aggrieved against the said order, moved this Court and obtained the present Rule.

3. Mr. Mukheriee, appearing for the petitioner in support of the Rule, contended that the learned Additional District Judge had acted illegally and without jurisdiction in condoning the delay in the instant case inasmuch as no sufficient cause has been made out for not filing the appeal within tune. He further contended that the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal was actually filed, has not been explained. Accordingly, the opposite party's application for condoning the delay ought to be dismissed on that ground alone. In support of his contentions, Mr. Mukherfee referred to the decision of the Supreme Court in Ramlal v. Rewa Coal Fields. : [1962]2SCR762 .

4. In condoning the delay under Section 5 of the Limitation Act, the Court should consider that by lapse of time a legal right has been accrued to the decree-holder and that right should not be disturbed light-heartedly without sufficient cause, but, if sufficient cause is shown, the Court has ample discretion to condone the delay.

5. So the only point to be considered is, whether sufficient cause has been made out by the opposite party in his application which enables the Court to exercise its discretion under Section 5 of the Limitation Act.

6. The Full Bench of the Madras High Court has laid down in Krishna y, Chathappan, (1890) ILR 13 Mad 269 (FB), that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice where no negligence, nor inaction, nor want of bona fides is imputable to the appellant. That decision received the approval of the Supreme Court in Dinabandhu Sahu v. Jadumoni Mangaraj AIR 1954 SC 411 at p. 414; : [1962]2SCR762 and Lonard Gram Panchayat v. Ramgiri, : (1967)IILLJ870SC .

7. In : [1962]2SCR762 , the Supreme Court has held that in showing the 'sufficient cause' for condoning the delay, the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day when the appeal was actually filed.

8. Now, in justifying the conduct of the party and his agent--dealing assistant, what materials do I find from the records which constitute 'sufficient cause'? It is not known what was the last date for filing the appeal; when the application was made for certified copies of the judgment and decree; and on what date they were received; on what date papers were delivered to the Government Pleader; when the memorandum of appeal was drafted and delivered to the appellant or its dealing agent? There was no explanation of the delay between the last day of limitation and the day on which the appeal was filed as required by the above decision of the Supreme Court. Besides the bare statement that records of the case along with the certified copies of the decree were received late and due to oversight of the dealing as-isistant of the appellant the papers were not sent to the Government Pleader in time, there were no relevant materials, no explanation nor even there was any effort to explain the delay of each day that lapses beyond the period prescribed by the Limitation Act.

9. So, it can hardly be said that there is no negligence on the part of the opposite party. No bona fides can also be imputed to him. I find, that in utter carelessness and callousness the petition for the condonation of delay has been drafted wherein no cause, not to speak of any sufficient cause, has been made out.

10. It is true that what constitutes 'sufficient cause' depends on a reference to the circumstances of each case, but each case must, nevertheless, be explained as to its own circumstances to see whether they make it fall within or without the lines of the general rule. In my opinion upon the materials on record, no 'sufficient cause' has been made out in the present case and the Court of Appeal below has improperly exercised its discretion in condoning the delay under Section 5 of the Limitation Act.

11. Normally this Court is reluctant to interfere in revision with the discretionary orders passed by the Subordinate Courts. But when such discretion is not exercised judicially, this Court would be justified in interfering with it, as has been observed by a Full Bench of the Allahabad High Court in Bechi v. Ahsan-ullah Khan, (ILR 12 All 461 at p. 483), it is the duty of the Second Appellate Court to see whether the duty thus cast upon the Judge of the lower Appellate Court has been properly discharged by him, and to interfere if by a wrong, improper and judicially unsound exercise of discretion under Section 5 of the Act, he has admitted an appeal which was barred by limitation. To hold otherwise would be to confer an amount of finalityand conclusiveness upon the adjudication of District Judges in this respect which the law could never have intended for the logical result of such a view would be to paralyse the hands of this Court.

12. The proof of 'sufficient cause' is the condition precedent for the exercise of discretion by the Court under Section 5 of the Limitation Act. If 'sufficient cause' is not proved, the Court needs nothing further to do but dismiss the petition for condonation of delay. It was remarked by Lord Asquith in Bellen-den v. Satterthwaite. (1948) 1 All ER 343 at p. 345 'we are here concerned with judicial discretion, and it is of the essence of such discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only when the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong that an appellate body is entitled to interfere.' In the instant case. I am of opinion that the discretion exercised by the lower Appellate Court is plainly wrong and as such I am justified to interfere even with the discretionary order passed by the Court of Appeal below. Accordingly, I hold that the learned Additional District Judge has failed to exercise his discretion judicially; thereby acted illegally and with material irregularity in exercise of his jurisdiction and his order must be set aside.

13. In the result, this Rule is made absolute. The impugned order of the learned Additional District Judge is set aside. There will be no order for costs.


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