The court emphasized that mere assertions of negligence by counsel are insufficient to justify a delay in filing an appeal; concrete evidence of sufficient cause is required.

ORDER :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. S. Biswas, the learned counsel for the applicants.Also heard Ms. R. Choudhury, learned counsel for the respondent Nos. 1, 3, 4, 5, 6 and 7.

2. This application under Section 5 of the Limitation Act, 1963 has been preferred by the applicants, namely, 1. Fazal Ali and 2. Md. Afjal Ali for condoning the delay of 829 days in preferring the connected Regular Second Appeal against the impugned judgment and decree dated 01.9.2017 passed by the Court of learned District Judge, Chirang, Kajalgaon in Title Appeal No. 13/2015.

3. By the impugned order, the Appellate Court reversed the judgment and decreed dated 13.03.2014 passed by the Court of learned Munsiff Bongaigaon in Title Suit No. 47/2007.

4. The said Title Suit was filed by the present applicants for declaration of right, title and interest and for recovery of possession by the judgement and decree dated 13.03.2024, the suit was decreed in favour of the present applicants.

5. However, by the impugned order, the First Appellate Court reversed the said judgement and decree and passed the decree in favour of the present respondents.

6. The learned counsel for the applicants has submitted that the applicants could not approach for filing the connected Regular Second Appeal within the prescribe period of limitation, as due to bonafied mistake of earlier engaged counsel they were not informed about the judgment and decree passed in Title Appeal No. 13/2015.

7. It is submitted by the learned counsel for the applicants that it is only in the mid part of 2018 when the applicants, on their own, went to their engaged counsel, they came to know about the fate of the Title Appeal No.13/2015.

8. It is submitted by the learned counsel for the applicants that thereafter, on 02.09.2019, the applicants applied for certified copy.

9. The learned counsel for the applicants have also submitted that in the meanwhile, the applicant no.1 was declared as a foreigner in FT Case No. 23/2017 by order dated 20.06.2018, passed in the said case.

10. The learned counsel for the applicants further submits that the applicant No.1, under the apprehension that he may be detained at the detention camp, had to take shelter in the residence of his relative and finally, in 2020, he filed a writ petition, challenging the order dated 20.06.2018, passed in FT Case No. 23/2017, wherein he got interim relief by order dated 29.05.2020, passed in Writ Petition No. 4692/2018.

11. The learned counsel for the applicants have submitted that as the applicant No.1 was declared as a foreigner, he had to undergo harassment and, therefore, he could not file the connected Regular Second Appeal within the period of limitation.

12. The learned counsel for the applicants have also submitted that the applicants are poor people not knowing the intricasies of the legal system and, therefore, a lenient view of the matter should be taken and the delay of 829 days in approaching this Court in filing the connected Regular Second Appeal should be condoned.

13. On the other hand, Ms. R. Choudhury, learned counsel for the respondents, has vehemently opposed the prayer for condoning the delay of 829 days in this case.

14. She has submitted that the applicants have failed to sufficiently explain the cause of delay in the instant case. She has also submitted that the applicants have knowingly filed the connected Regular Second Appeal against a dead person, as respondent No. 2, namely, Nasimuddin Mandal, who had already expired during the pendency of the Title Appeal No. 13/2025 before the First Appellate Court.

15. The learned counsel for the respondents has also submitted that before filing this Regular Second Appeal, the applicants had also referred an appeal against judgment and decree passed in Title Suit No. 12/2018, which was filed by the present respondents.

16. In the said Title Appeal, which was registered as Title Appeal No. 2/2022, the present applicants had made the legal heir of late Nasimuddin Mandal as party