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CALCUTTA HIGH COURT
Harish Tandon, J.
Dilip Shaw —Petitioner
versus
Ramlal Das —Opp. Party
C.O. No.3224 of 2016
Decided on 29.8.2016
For the Petitioner:Mr. Siva Prosad Ghose, Advocate
For the Opp. Party:Mr. Nirmalendu Bera and Mr. Gora Chand Samanta, Advocates
IMPORTANT POINT
If explanations are sufficient enough to cover entire period of delay, it is immaterial that number of days of delay has not been expressly pleaded or stated in petition.
Headnote:Civil Procedure Code, 1908—Order 9, Rule 13—Limitation Act, 1963—Section 5— Application for setting aside ex parte decree—Limitation—Suit for declaration and permanent injunction—Court should be lenient and liberal in considering application for condonation of delay—Approach of Court should be pragmatic and not a pedantic one—Meritorious matter should not be defeated on anvil of limitation—To render complete and effective adjudication of disputes, Court should proceed to decide the same on merit than to perish at stage of limitation—Approach of Court should not be such to find fault in an application for condonation of delay for dismissal but must be justice oriented—Appeal was filed within 90 days from date of order and explanation as given cannot be said to be moonshine or concocted—If explanations are sufficient enough to cover entire period of delay, it is immaterial that number of days of delay has not been expressly pleaded or stated in petition—Application for condonation of delay filed by petitioner allowed. (Paras 8 to 11)
Result: Appeal allowed.
Harish Tandon, J.—This revisional application is directed against an order dated 3rd June, 2016 passed by the learned Additional District Judge, 1st Court, Barrackpore, 24-Parganas (North) in Miscellaneous Appeal No. 01 of 2016, by which an application under Section 5 of the Limitation Act is rejected.
2. Indubitably the suit for declaration and permanent injunction is decreed ex parte against the petitioner. The application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the said ex parte decree was filed beyond the statutory period of limitation. An application under Section 5 of the Limitation Act for condonation of delay was taken up by the Trial Court and having found no plausible reasons the Court dismissed the same on 9th October, 2015.
3. The certified copy of the said order was applied on 19th November, 2015 and was made ready for delivery on 8th December, 2015. The appeal was filed before the Court of Appeal below on the reopening of the Trial Court following Christmas Vacation along with an application for condonation of delay.
4. It is averred in the said application that the learned advocate on record was under the impression that rejection of an application under Section 5 of the Limitation Act does not tantamount to rejection of the main proceeding and, therefore, such order is amenable to be challenged before the Revisional Court.
5. Since the period of limitation for filing the revisional application is 90 days, he accordingly advised the client to obtain the certified copy of the order. Subsequently he readvised that the remedy by way of a revision is not available, as the appeal would lie before the Appellate Forum in view of the judgement rendered by the Hon’ble Supreme Court in case of Shyam Sundar Sarma v. Pannalal Jaiswal & Ors. reported in AIR 2005 SC 226. Immediately thereafter the appeal is filed with an application for condonation of delay.
6. The Court of Appeal below proceeded to dismiss the said application, as the petitioner had not disclosed therein the number of days of delay in preferring the appeal. The Court of Appeal below is of the opinion that if the number of days in delayed filing is not disclosed in the petition, there cannot be any explanation for condonation of delay.
7. What can be gathered from the aforesaid observations of the Court of Appeal below is that the litigant should specify the number of days of delay and then the Court will find whether the delay has been sufficiently explained or not.
8. Time and again the Apex Court as well as this Court have laid down that the Court should be lenient and liberal in considering an application for condonation of delay. The approach of the Court should be pragmatic and not a pedantic one. The meritorious matter should not be defeated on the anvil of limitation. To render complete and effective adjudication of the disputes, the Court should proceed to decide the same on merit than to perish at the stage of limitation. The approach of the Court should not be such to find fault in an application for condonation of delay for dismissal, but must be justice oriented.
9. It appears to this Court that the Court of Appeal below was finding fault in the application for the purpose of dismissal and having found that the number of days has not been disclosed dismissed the same. The application for condonation of delay clearly contains the statements that there was an uncertainty in the mind of the learned advocate on record whether revision would lie or the appeal is the proper remedy.
10. The period of limitation provided under the statute for the aforesaid remedies are different. If subsequently right approach is made and by the time the limitation has intervened, the litigant should not suffer for the lapses and laches on the part of the learned advocate.
11. Admittedly the appeal was filed within 90 days from the date of the order and, therefore, the explanation as given cannot be said to be moonshine or concocted. If the exp
