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High Court of Calcutta
Tarun Kumar Gupta, J.
M/S. G.N.K. Drugs Company Pvt. Ltd. – Appellant
Versus
Sachindra Nath Senapati – Respondent
S.A. No.28 of 2007
Decided on : March 13, 2012
LIMITATION ACT - CONDONATION OF DELAY - FILING OF APPEAL - WRONG ADVICE OF COUNSEL - NOT A SUFFICIENT GROUND FOR CONDONATION - DELAY NOT PROPERLY EXPLAINED.
Fact of the Case:
The appellant filed an appeal against an ex parte decree passed in 1994, 11 years after the decree was passed. The appellant sought condonation of delay, claiming that the delay was due to wrong advice given by their counsel, who advised them to file a Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure instead of filing a regular appeal.
Finding of the Court:
The court held that the delay in filing the appeal was not properly explained and that the appellant was not entitled to condonation of delay. The court observed that the advice given by the counsel to file a Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure instead of filing a regular appeal was not wrong advice and that the appellant could not be permitted to invent new grounds to justify the delay.
Issues: 1. Whether the delay in filing the appeal was properly explained? 2. Whether the appellant was entitled to condonation of delay?
Ratio Decidendi: 1. The principles underlying section 14 of the Limitation Act, 1963 are applied even in the case of filing of an appeal. 2. Bona fide prosecution of a proceeding in a wrong Court is a proper ground towards "sufficient cause" for extending the period of filing an appeal, but electing one of the remedies and failing on merits cannot be a ground under Section 14 of the Limitation Act, 1963.
Final Decision: The appeal was dismissed.
Tarun Kumar Gupta, J.
1. THIS appeal is directed against judgment and decree dated 20th May, 2006 passed by learned District Judge at Alipore in Title Appeal No.16 of 2006 thereby affirming the judgment and decree dated 13th December, 1994 passed by learned Civil Judge (Senior Division) at Baruipur in Title Suit No.29 of 1994.
2. THIS Appeal has its checkered history. The facts of said case were noted down in details by learned District Judge in the order impugned. However, for better appreciation of the submissions of learned counsels of the parties it would be worthy to note down the list of dates as supplied by the parties which run as follows:-
Sl. No. DATE PARTICULARS
01. 20.06.1988 Suit for eviction being Title No.101
of 1988 was filed by Sachindra Nath Senapati and Ors. against G.N.K. Drugs on the ground of default.
02. 21.12.1989 Title Suit No.101 of 1988 was
dismissed as the defendant was given the protection under Section 17(4) of the West Bengal Premises Tenancy Act.
03. 08.02.1994 Title Suit No.29 of 1994 was filed by
Sachindra Nath Senapati and Ors. against G.N.K. Drugs for eviction from the suit building on the ground of Second Default.
04. 13.12.1994 Title Suit No.29 of 1994 was decreed
ex parte. Defendant after entering appearance in the said suit filed its written statement, but did not contest when the suit was in the Pre-emptory hearing stage.
05. 12.01.1995 The last date for preferring an appeal
under Section 96 of the Code of Civil Procedure as well as for filing an application under Order 9 Rule 13 of the Code of Civil 3 Procedure.
06. 09.02.1995 An application was filed under Order
9 Rule 13 of the Code of Civil Procedure being Misc. Case No.9 of 1995 for setting aside the ex parte decree. An application under Section 5 of the Limitation Act was also filed for condonation of delay in filing the said Misc. Case.
07. 1995 Title Execution Case being No.1 of
1995 was filed for executing the decree dated 13.12.1994.
08. 28.12.1996 Learned Trial Judge dismissed the
Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure as well as the application under Section 5 of the Limitation Act.
09. 1997 Defendant preferred a Misc. Appeal
being No.29 of 1997 against order dated 28.12.1996.
10. 05.03.1998 Learned Appellate Court allowed the
Misc. Appeal being No.29 of 1997
11. 1998 Against the order dated 05.03.1998
the plaintiff preferred a Civil Revisional Application being C.O. No.1084 of 1998.
12. 13.08.2001 C.O. No.1084 of 1998 was allowed
by this Hon’ble Court and the order dated 05.03.1998 was set aside.
13. 2001 Defendant filed an application under
Section 115A of the Code of Civil Procedure being C.R. No.523 of 2001 against rejection of Section 5 application.
14. 30.07.2004 Learned Additional District Judge
5th Court at Alipore was pleased to dismiss the revisional application thereby affirming the order dated 28.12.1996.
15. 2004 Defendant preferred an application
under Application 227 of the Constitution of India being C.O. No.2874 of 2004 challenging the order dated 30.07.2004.
16. 11.01.2005 THIS Hon’ble Court dismissed C.O.
No.2874 of 2004.
17. 2005 Defendant filed an application under
Section 47 of the Code of Civil Procedure being Misc. Case No.3 of 2005 alleging that the notice under Section 13(6) the West Bengal Premises Tenancy Act was not served upon the defendant company.
18. 07.03.2005 Defendant filed an application for
review of the order dated 11.01.2005 being R.V.W. No.740 of 2005
19. 16.09.2005 THIS Hon’ble Court dismissed
review application being R.V.W. No.740 of 2005.
20. 05.01.2006 Defendant filed an application under
Order 6 Rule 17 for amendment in Section 47 application.
21. 05.01.2006 Defendant filed an application for
striking out the defence of the
plaintiff/Decree Holder in Misc. Case No.3 of 2005.
22. 27.01.2006 Title Appeal No.16 of 2006 was filed
along with a petition under Section 5 read with Section 14 o
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