Inordinate delay in filing appeals cannot be condoned due to counsel's negligence or misunderstanding of law; strict adherence to limitations is required.

JUDGMENT :

Bibhas Ranjan De, J.

In Re: CAN 1 of 2024

1. The instant application under Section 5 of the Limitation Act has been submitted before this Court with a prayer for condonation of substantial delay of 2931 days in filing of the second appeal, primarily attributable to the pendency of the proceeding under Order 47 Rule 1 of the Code of Civil Procedure (for short CPC) and illness suffered by the petitioner, which circumstances have collectively impeded the timely prosecution of the present matter.

Background in Brief:-

2. One title suit being no. 48 of 2006 was instituted by the respondents/opposite party with a prayer for a decree for eviction and revocation of license against the appellant/petitioner. Ld. Trial Court dismissed the said title suit by the judgment and decree dated 30.04.2013 which was assailed in Title Appeal no. 134 of 2013 wherein Ld. Appellate Court reversed the judgment of the Trial Court, thereby directing appellant/ petitioner to vacate the suit property within two months.

3. Being aggrieved by and dissatisfied with the judgement and decree dated 29.07.2016 passed by the Ld. Appellate Court, appellant/petitioner took out an application for review under Order 47 Rule 1 of the CPC which was registered as Misc. Case No. 90 of 2016. Said Misc. Case was dismissed for default on 26.07.2022. At the behest of appellant/petitioner one application was made for restoration of the said Misc. Case No. 90 of 2016 to its original file and number. Said restoration application was registered as Misc. Case No. 254 of 2022 which is still pending for adjudication.

4. The Second appeal being no. SAT 64 of 2024 has been preferred on 09.04.2024 against the judgment and decree dated 29.07.2016 passed by the Ld. First Appellate Court, along with the instant application (CAN 1 of 2024) for condonation of delay of 2931 days in preferring the second appeal.

At the Bar:-

5. Ld. Counsel, Mr. Tanmay Mukherjee, appearing on behalf of the petitioner/appellant has submitted that being aggrieved by the judgment and decree dated 29.07.2016 the petitioner filed one application for review under Order 47 Rule 1 of CPC due to apparent error, under advice of Ld. Counsel but he was diligently pursuing the matter.

6. Mr. Mukherjee has further submitted that petitioner being a senior citizen suffered from severe heart disease together with heart operation on 31.07.2020. It is submitted that upon knowledge of the order dated 04.03.2024 passed in Title Execution Case no. 61 of 2023 the instant appeal has been filed. Mr. Mukherjee has further submitted that the petitioner being a layman and senior citizen fully relied on the advice of the Ld. Counsel.

7. Mr. Mukherjee has further submitted that two applications registered as CAN 3 of 2024 and CAN 4 of 2024 were filed under Section 146 of the CPC with an application for condonation of delay under Section 5 of the Limitation Act. This Court after considering all facts and circumstances condoned the delay in filing application under Section 146 of the CPC.

8. In opposition to that, Ld. Counsel, Mr. Somnath Roy Chowdhury appearing on behalf of the opposite parties/ Respondents submitted that in the application for condonation of delay in filing second appeal there is nothing specific regarding indisposing and death of Ld. Counsel representing the petitioner/ appellant in the review application. Mr. Roy Choudhury has specifically highlighted the documents annexed with the application in support of heart disease of the petitioner by submitting inter alia that petitioner suffered from heart problem from April 2020 to August 2020 i.e. for 5/6 months only out of total delay of more than 8 years.

9. Mr. Roy Choudhury has submitted that no tenable explanation was given by the petitioner/appellant for inordinate delay of 8 years. Mr. Roy Choudhury has further submitted that negligence of the Ld. Counsel cannot be a ground to condone an inordinate delay, ignoring the responsibility of the litigant who owes a duty to be