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2018 Supreme(Cal) 996
IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Sandip Mukherjee – Appellant
Versus
Mr. Irshad Ali Khan – Respondent
C.O. 54 of 2018
Decided On : 24-01-2018
For the Appellant :Mr. Partha Pratim Roy and Mr. Dyutiman Banerjee, Advocates
For the Respondent:Mr. Sibasish Ghosh and Mr. Gautam Das, Advocates
The main legal point established in the judgment is the need for a liberal and reasonableness approach in exercising discretion for condonation of delay, considering the unique facts of each case and not being hyper-technical in dismissing applications for condonation of delay.
Headnote:
Delay Condonation - Civil Procedure - Code of Civil Procedure, Order 9 Rule 13, Limitation Act, Article 123 - The court discussed the principles of condonation of delay and emphasized the need for a liberal and reasonableness approach in exercising discretion. The court highlighted the importance of considering the unique facts of each case and not being hyper-technical in dismissing applications for condonation of delay. The court referred to legal provisions and judgments to support its decision to set aside the orders of the lower courts and allow the application for condonation of delay.
Fact of the Case:
The defendant/petitioner filed a revisional application challenging the dismissal of an application for condonation of delay in a suit for eviction. The lower courts had refused to condone the delay, leading to the dismissal of the application. The petitioner claimed that the delay was due to medical reasons and other circumstances.
Finding of the Court:
The court found that the lower courts had not properly considered the grounds for condonation of delay and had been too hyper-technical in their approach. The court set aside the orders of the lower courts and allowed the application for condonation of delay, subject to certain conditions.
Issues: The issues revolved around the sufficiency of the cause for condonation of delay, the consideration of medical certificate, and the approach of the lower courts in dismissing the application.
Ratio Decidendi: The court emphasized the need for a liberal and reasonableness approach in exercising discretion for condonation of delay. It highlighted the importance of considering the unique facts of each case and not being hyper-technical in dismissing applications for condonation of delay.
Final Decision: The court set aside the orders of the lower courts and allowed the application for condonation of delay, subject to the payment of costs and arrears rent within a specified time frame. The trial court was directed to hear the application under Order 9, Rule 13 of the Code and dispose of the same within two weeks.
JUDGMENT :
Harish Tandon, J.
The present revisional application has been filed by the defendant/judgment debtor/petitioner challenging an order dated 23rd November 2017 passed by the learned Civil Judge (Senior Division), Small Causes Court, Sealdah in Miscellaneous Appeal No. 1 of 2017 affirming an order dated 26th April 2017 passed by the learned Civil Judge (Junior Division), 1st Court, Sealdah in Miscellaneous Case No. 70 of 2011.
2. It is not in dispute that a suit for eviction was filed by the plaintiffs/opposite parties against the petitioner, inter-alia, on the ground of default and reasonable requirement. It is also not in dispute that after receiving the summons the petitioner appeared in the said suit through Mr. Kripanath Chakraborty, learned advocate, who filed Vakalatnama. Subsequently, no steps were taken by the petitioner, which resulted into an ex parte decree passed by the trial court.
3. An application under Order 9, Rule 13 of the Code of Civil Procedure, which gave rise to registration of Miscellaneous Case No. 70 of 2011, was filed along with an application for condonation of delay. The trial court dismissed the said application thereby refusing to condone the delay. As a resultant effect, the said miscellaneous case was also dismissed. The petitioner preferred an appeal before the appellate court, which stood dismissed affirming the order of the trial court.
4. The learned advocate for the petitioner submits that both the courts below have wrongly held that the petitioner has not made out a sufficient cause in not taking steps in the suit without adverting to the circumstances narrated therein in pragmatic manner. He further submits that the trial court refused to rely upon the medical certificate as the same was not marked as exhibit and erroneously held that the petitioner has failed to prove, by a single document, the grounds narrated therein. He also submits that the appellate court has simply affirmed the findings of the trial court without venturing to decide the appeal independently and on the basis of separate findings.
5. On the other hand, the learned advocate for the plaintiffs/opposite parties submits that the trial court did not find the cause shown to be sufficient for the purpose of condonation of delay and such finding was affirmed by the appellate court and, therefore, the High Court in exercise of powers under Article 227 of the Constitution of India should not interfere with the concurrent finding of facts. It is further submitted that the court should not condone the delay, as a lenient and/or sympathetic approach is required to be made in this regard but must find out whether a plausible ground has been made out justifying the condonation and placed reliance upon a judgment of the Apex Court in case of Lanka Venkateswarlu (D) by LRs. vs. State of A.P. & Ors., reported in 2011 (2) Indian Civil Cases 515. It is further submitted that the court is obliged to dismiss the application for condonation of delay if the applicant lacks bona fide and the negligence can be attributed to his conduct, as held in case of H. Dohil Constructions Company Private Limited vs. Nahar Exports Limited and another, reported in (2015) 1 Supreme Court Cases 680 . It is, thus, submitted that the impugned orders do not deserve any interference as the petitioner has failed to make out any sufficient cause for his non-appearance.
6. On the rival contention of the respective counsels, there is no hesitation in my mind that the court has to find out the plausible and convincing grounds occasioning the delay in filing the application within the statutory period of time. It is equally true that the length of delay is not material but what must swayed the mind of the learned Judge is the sufficient cause made out therein. Even a delay of shorter period cannot be condoned in absence of sufficient cause. On the other hand, the delay of longer period deserves to be condoned if the sufficient cause is made out.
7. The approa
