Judgment :

Biswaroop Chowdhury, J.

1.The appellant before this Court was a defendant in a suit for eviction before Learned Civil Judge Senior Division 5^th Court at Alipore South 24 Parganas being Title Suit No. 167 of 1993 in which the appellant/defendant suffered an eviction decree and preferred an appeal before the Learned District Judge South 24 Parganas, which failed. The appellant being aggrieved by the Judgment and Order dated 17-04-2015 passed by Learned Additional District Judge 8^th Court Alipore South 24 Parganas in TA-212 of 2009 has come up with the instant appeal.

2.As the ground for dismissal of Appeal is due to dismissal of application for condonation of delay under Section 5 of the Limitation Act the scope of hearing of this appeal is under the provision laid down under Section 5 of the Limitation Act.

3.The Appeal was admitted by the Hon’ble Division Bench and the following substantial questions of Law was framed;

1) Whether the Court of appeal below rightly dismissed the application for condonation of delay holding that the appellant has not explained sufficient cause when the documents pertaining to his illness was annexed to the application for condonation of delay?

2) Whether the lapses and laches on the part of the conducting Advocate is a sufficient ground for condonation of delay in filing the appeal?

4.Heard Learned Advocate for the appellants and Learned Advocate for the respondents. Persued the Judgment and Order under appeal.

5.Learned Advocate for the appellant submits that the defendant no-1 initially appeared in the suit as D.W. 1 and filed his affidavit in chief but due to health conditions was constrained to appear in the cross examination. The Defendant No-1 was a cardiac patient and since 2003 he was suffering from various ailments. The defendant no-1 lastly appeared before the Trial Court on 12-09-2007. The Defendant No-1 could not participate in the cross- examination as he felt sick in the Court premises and accordingly had to leave the Court premises. The next date accordingly was fixed on 15-02-2008 and on such day although he was present but the proceeding was adjourned. The defendant no-1 requested his lawyer to take necessary steps and same was assured but proper steps were not taken. The health of the defendant No-1 deteriorated in March 2008 and he was hospitalized multiple times and was in bed rest while he was at home. Learned Advocate further submits that in July 2009 the health condition of the Defendant No. 1 started improving and he gradually started his normal, activities. Learned Advocate contacted his Lawyer at his chamber and wherefrom he came to know that the suit was decreed on 19-03-2008. The Defendant no-1 immediately directed his lawyer to take necessary steps for obtaining certified copy and certified copy was delivered on 24-07-2-009 and the appeal was filed 27-07-2009. Thus there was a delay of 496 days. Learned Advocate submits that the appellant adduced evidence in the hearing of the condonation of delay and filed all medical papers, and gave reasonable explanation for condonation of delay but the same was not accepted by the First Appellate Court.

Learned Advocate relies upon the following judicial decisions:

N.Balakrishnan VS M.Krishnamurty Reported in 1998(7) SCC-P-123. 

Ram Nath Sao VS Gobardhan Sao. Reported in 2002(3) SCC-127.

Urban Improvement Trust VS Vindhya Devi and ors. Reported in 2024 SCC. Online S.C.-3725.

Inder Singh VS State of Madhyapradesh. Reported in 2025 SCC Online S.C. 600.

6. Learned Advocate for the respondents submits that the Judgment of Title Suit No-167 of 1993 of the 5^th Court of Learned Civil Judge (Senior Division) at Alipore was passed on 19-03-2008. There were three Learned Advocates who were conducting the case. Learned Advocate further submits that certified Copy of the Judgment and Decree was applied on 26-11-2008 and court fees were notified on 10-12-2008 and were deposited on the same date. The copy was ready delivery on 20-12-2008 and was