Amrit Das And Ors vs Jatindra Chandra Sarkar

This present appeal was admitted vide order dated 17.09.2019 after formulating the following substantial question of law:

"Whether in absence of any apparent reason for discarding the causes assigned in the petition for condonation of delay, the order can be held sustainable?"

The brief facts are that the plaintiff-respondent (for short the plaintiff) filed a suit against the defendants for recovery of possession and perpetual injunction in the court of learned Civil Judge, Junior Division, Sonamura, West Tripura (now Sepahijala District) which was numbered as T.S. 28 of 2011. The contentions of the plaintiff in the plaint was that the land as described in schedule 'A' of the plaint was originally khas land and was allotted to the plaintiff and khatian was created in his name. While the plaintiff was in possession, the defendants constructed mud wall hut in a part of the said land on 30.07.2011 without any right or title over the said land. The said part of the land over which the mud wall hut was constructed is described in schedule 'B' of the plaint.

After receiving summons, the defendants appeared and contested the suit by filing written statement. In the written statement, the defendants denied all the averments made in the plaint and stated that since 1957 one Dhananjoy Das, father of the defendant nos. 3 and 4 had been possessing the suit land after purchasing from one Harendra Chandra Das and after the death of Dhananjoy Das, his legal heirs were in possession of the said land. They have further stated that in the year 2005, they came to know that the plaintiff by practicing fraud got the suit land allotted in his name. After getting the said information, they made a prayer for cancellation of the allotment order in respect of 35 decimal of land including the suit land and, therefore, they prayed for dismissal of the suit.

During pendency of the suit, one Sanjan Das @ Sanjoy Das was impleaded as defendant no. 5. After passing of the judgment by the learned trial court said Sanjan Das @ Sanjoy Das had expired, so his legal heirs had been impleaded as appellant no. 5(a) to 5(b) in the Memo of Appeal filed before the learned appellate court and in the present appeal same serial numbers are maintained.

Based on the pleading, the learned trial court framed five issues, being issue no. (a) to (e) and after completion of the trial, decided all the issues in favour of the appellant and decreed the suit for recovery of possession of the defendants from schedule 'B' of the plaint and restrained them from disturbing the possession of the plaintiff over the suit land described in schedule 'B' and 'C' of the plaint.

Being aggrieved, the defendants preferred an appeal in the court of learned Additional District Judge, Sonamura, West Tripura (now Sepahijala District) which was numbered as Title Appeal 01 of 2019. As per the calculation of the defendants, there was delay of 131 days in preferring the appeal. So, a separate application for condonation was filed by the defendants.

It is further stated that the judgment dated 25.07.2018 was passed by the trial court of remand by the learned appellate court. Prior to that suit filed by the plaintiff, it was dismissed by the judgment dated 17.08.2013. Against the said judgment, the plaintiff filed an appeal in the court of learned Additional District Judge, Sonamura, West Tripura (now Sepahijala District) which was numbered as Title Appeal 08 of 2013 and in the said appeal, the learned Additional District Judge, Sonamura, passed judgment on 27.01.2016 remanding the suit to the learned trial court with a direction to frame fresh issues considering the pleadings of both the parties once again and to decide afresh giving both the parties to adduce further evidence in support of their pleading, if any.

Since after the second judgment of the learned trial court on remand dated 25.07.2018 (wrongly written as 27.07.2018 in the condonation petition) the delay of 131 days was mentioned and explained in that petition in place of more than 200 days, the learned appellate court without giving the appellant-petitioner any scope to submit a better statement explaining the correct period of delay rejected the said condonation petition on 01.06.2019 and consequently the appeal was also dismissed.. Hence, the present second appeal challenging the impugned order dated 01.06.2019 passed by the learned Additional District Judge, Sonamura, Sepahijala in Civil Misc. 06 of 2019 arising out of Title Appeal 01 of 2019.

On the face of the order dated 01.06.2019 passed by the learned appellate court, it is clear that the learned first appellate court did not enter into the merit of the case. Even after detection of the mistake which were apparent on the face of the petition for condonation of delay, the learned first appellate court did not think it necessary to consider the submission of the learned counsel appearing for the appellant to permit him to file better statement. In my opinion, this is a gross miscarriage of justice caused by the first appellate court. Justice not only be done, but it is shown to have been done.

In view of the above, the order dated 01.06.2019 passed by the learned Additional District Judge, Sonamura, Sepahijala in Civil Misc. 06 of 2019 arising out of Title Appeal 01 of 2019 is set aside and quashed.

The case is remanded back to the court of learned District Judge, Sepahijala Judicial District with a direction to allow the appellant to submit better statement in regard to the petition for condonation of delay. Thereafter, the matter has to be decided according to its own merit and in accordance with law.

With the aforesaid observation and direction, the appeal stands allowed and remanded back to the court of learned District Judge, Sepahijala Judicial District.