Back
IN THE HIGH COURT AT CALCUTTA
HIRANMAY BHATTACHARYYA
Subir Guha Roy – Appellant
Versus
Sandip Ghosh – Respondent
JUDGMENT :
HIRANMAY BHATTACHARYYA, J.
1. This application under Article 227 of the Constitution of India is at the instance of the plaintiffs and is directed against judgment and order dated 19.11.2024 passed by the learned District Judge, 24 Parganas (South) at Alipore in Misc. Appeal No. 381 of 2023.
2. By the judgment and order impugned, the Misc. Appeal was allowed thereby setting aside the ex parte decree passed in Ejectment Suit no. 15 of 2019.
3. The petitioners herein filed a suit for eviction being Ejectment Suit no. 15 of 2019 before the learned Civil Judge, Junior Division at Alipore, District 24 Parganas (South) against the opposite parties herein. The said suit was decreed ex parte on 17.09.2021. The opposite party no. 1 herein filed an application under Order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. Case no. 126 of 2022. Since the said Misc. Case was filed beyond the statutory period of limitation, the same was accompanied by an application under Section 5 of the Limitation Act. The learned Trial Judge rejected the prayer for condonation of delay by an order dated August 10, 2023 and consequently dismissed the Misc. Case being barred by lim
The court reaffirmed that substituted service under the Code of Civil Procedure does not constitute adequate service, necessitating substantiation of claims in applications for condonation of delay.
Actual service of summons by registered post acknowledgment due is valid, even if defendants reside outside jurisdiction, and non-compliance with procedural rules does not equate to no service.
The court emphasized that applications for condonation of delay should be decided on merits, prioritizing substantial justice over technicalities, especially when the delay is not due to negligence.
The court affirmed that mere lack of knowledge due to negligence does not justify condoning an extensive delay in responding to an ex parte decree.
Tribunal lacks jurisdiction to condone delay in appeal beyond 15 days under Section 61(2) of the IBC.
Point of law: Once court accepts explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisiiona....
Judicial discretion in condoning delay must favor substantial justice over rigid adherence to timelines, though sufficient cause for delay must be demonstrated.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
