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2020 Supreme(Cal) 40
IN THE HIGH COURT OF CALCUTTA
Bibek Chaudhuri, J.
Biswanath Pal - Appellant
Versus
Sankar Nath Pal And Others - Respondents
Second Appeal No. 8 of 2016; C A N No. 9460 of 2019
Decided On : 07-01-2020
Ayan Banerjee, Advocate, Soumo Chaudhury, Advocate, Saumyen Datta, Advocate, Ashutosh Mukherjee, Advocate, Susmita Mazumder, Advocate, Sarajit Sen, Advocate, Tapas Singha Roy, Advocate
The main legal point established in the judgment is the need for a liberal approach in condoning delay, the importance of advancing substantial justice, and the discretion of the court in admitting appeals with sufficient cause.
Headnote:
Limitation Act - Appeal - Section 5 - 1963 - [FINAL DECREE IN A PARTITION SUIT] - [Section 5 of the Limitation Act] - [Summary of Acts and Sections: The court discussed the application of Section 5 of the Limitation Act in condoning the delay in filing the appeal against the final decree in a partition suit. The court extensively analyzed the grounds for condonation of delay, the medical certificates certifying the illness of the appellant, and the refusal to consider the medical evidence. The court also highlighted the legal principles related to condonation of delay and the discretion of the court in admitting appeals with sufficient cause. The judgment emphasized the need for a liberal approach in condoning delay and the importance of advancing substantial justice. The court criticized the lower appellate court for deciding the appeal on merit while considering an application under Section 5 of the Limitation Act. The judgment also raised concerns about the judicial conduct and recommended administrative review of the concerned judge's actions. The appeal was allowed, and the delay in filing the appeal was condoned.
Fact of the Case:
The defendant-appellant filed an appeal against the final decree in a partition suit beyond the statutory period of limitation and sought condonation of delay under Section 5 of the Limitation Act. The appellant cited illness and lack of knowledge about the progress of the suit as reasons for the delay. The lower appellate court rejected the application under Section 5 and proceeded to decide the appeal on merit.
Finding of the Court:
The court found that the lower appellate court erred in rejecting the application under Section 5 of the Limitation Act and in deciding the appeal on merit while considering the application for condonation of delay. The court also raised concerns about the judicial conduct and recommended administrative review of the concerned judge's actions.
Issues: The issues included the rejection of the application under Section 5 of the Limitation Act, the consideration of medical evidence, the decision to proceed with the appeal on merit, and concerns about judicial conduct.
Ratio Decidendi: The court emphasized the need for a liberal approach in condoning delay, the importance of advancing substantial justice, and the discretion of the court in admitting appeals with sufficient cause. The judgment highlighted the legal principles related to condonation of delay and criticized the lower appellate court for deciding the appeal on merit while considering an application under Section 5 of the Limitation Act.
Final Decision: The appeal was allowed, and the delay in filing the appeal was condoned. The court recommended administrative review of the concerned judge's actions and requested the lower appellate court to dispose of the appeal within three months.
JUDGMENT
Bibek Chaudhuri, J. - Final decree in a Partition Suit being Title Suit No.12 of 1989 was assailed by the defendant-appellant in Title Appeal No.132 of 2010 in the Court of the learned District Judge, Hooghly beyond the statutory period of limitation. Therefore the appeal was filed along with an application under Section 5 of the Limitation Act.
2. The learned District Judge, Hooghly by an order dated 31st July, 2015 was pleased to reject the application under Section 5 of the Limitation Act and consequently, the appeal was also dismissed being barred by limitation.
3. In the instant appeal, the defendant-appellant has challenged the order of rejection of the application under Section 5 of the Limitation Act and consequential dismissal of the appeal.
4. Vide order dated 17th November, 2015, the Division Bench of this Court admitted the instant appeal formulating the following substantial Questions of Law:
I. Whether the learned First Appellate Court was justified in rejecting the appellant's application under Section 5 of the Limitation Act and thereby refusing to condone the delay in filing this appeal without considering that the Doctor's certificate certifying the illness of the appellant remains uncontroverted from the sides of the respondents, or not?
II. Whether the learned Judge of the appellate Court below erred substantially in law by entering into and deciding upon the merits of the appeal while deciding an application for condonation of delay under Section 5 of the Limitation Act, 1963, or not?
5. I have extensively heard the learned counsels on behalf of the appellant and respondents. I have also perused the impugned judgment and order affirming Final Decree passed in Title Appeal No.132 of 2010.
6. Before dealing with the substantial question of law as formulated in ground (I), I propose to adjudicate substantial question of law formulated in ground no.(II), viz, whether the learned Judge in lower appellate court has the jurisdiction to decide an appeal on merit after arriving at a conclusion that the appeal was barred by Limitation and the appellant failed to establish sufficient cause for condonation of delay.
7. It is pertinent, at the outset, to mention few dates from lower court record. Title suit No.12 of 1989 was decreed in preliminary form on 17th December, 1993. The defendant-appellant preferred Title Appeal No.19 of 1994 against the said preliminary decree. The appeal was dismissed on contest on 28th June, 1996 by the learned Additional District Judge, Hooghly. Second Appeal No.249 of 1997 also received the same fate vide judgment and decree of dismissal dated 28th March, 2006.
8. This court vide order dated 28th February, 1997 directed the trial court to appoint Partition Commissioner to carry on commission work for effecting partition of the suit property, but no final decree would be passed during the pendency of S.A 249 of 1997. Accordingly, the learned trial court appointed one Sri Ashim Ghosh, Advocate as a Partition Commissioner. After disposed of the second appeal, 6th January, 2007 was fixed by the Advocate commissioner for valuation of the suit property. The appellant prayed for adjournment of the proceeding which was rejected by the Advocate Commissioner. Subsequently, a series of dates were fixed by the learned Trial Court for submission of report by the learned Advocate Commissioner for drawing up of final decree. Finally, on 19th August, 2009, the learned Commissioner submitted his report. It was accepted by the learned trial court vide order dated 31st October, 2009 and on the basis of the said report, final decree was drawn on 23rd December, 2009.
9. According to the appellant, he came to know about the final decree passed in the said partition suit on 10th May, 2010 from respondent No.5 and on 29th May, 2010 applied for certified copy of the judgment and decree with a view to preferring an appeal. Finally, Title Appeal No.132 of 2010 was filed along with an application under Sect
