Ashokendu Adhikary vs Manoj Patnaik

Manojit Mandal, J

This application is at the instance of the defendant/petitioner and is directed against the order dated 25.06.2019 passed by the learned 1st Additional District Judge at Sealdah in Misc. Appeal No. 58 of 2018 whereby the learned 1st Additional District Judge rejected the application under Section 5 of the Limitation Act and dismissed the Misc. Appeal bearing No. 58 of 2018.

The plaintiff/opposite party filed a suit bearing Title Suit No. 03 of 2017 for declaration and injunction against the petitioner before the learned Civil Judge (Junior Division), 2nd Court at Sealdah. The petitioner entered appearance in the said suit by filing written statement with a prayer of counter-claim under Order 8 Rule 6A of the Code of Civil Procedure. The petitioner thereafter filed an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure against the opposite party. The said application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was finally taken up for hearing by the Court of learned Civil Judge (Junior Division), 2nd Court at Sealdah and after hearing, and on perusal of the materials on record, the learned Civil Judge (Junior Division), 2nd Court at Sealdah was pleased to reject the said application by an order dated 23.08.2018. Being aggrieved and dissatisfied with the said order dated 23.08.2018 in Title Suit No. 03 of 2017 passed by the learned Civil Judge (Junior Division), 2nd Court at Sealdah, the petitioner had preferred a Misc. Appeal along with an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and an application under Section 5 of the Limitation Act, 1963, for condonation of delay before the learned Additional District Judge at Sealdah and the same was registered at Misc. Appeal No 58 of 2018.

The said Misc. Appeal filed by the petitioner was dismissed and the application under Section 5 of the Limitation Act, 1963, for condonation of delay was rejected by the order impugned. So, the defendant/petitioner filed this application.

Having considered the submission of the learned Advocate appearing on behalf of the petitioner and on perusal of the materials available on record and the impugned order, I find that the impugned order does not seem to be improper, irregular or invalid since the petitioner was absent when the matter was called on. The contention of the petitioner is not supported by enough materials. However, as the petitioner wants to proceed with the Misc. Appeal bearing No. 58 of 2018 and it is desirable and in the interest of justice that every party should get fair chance to put forward his best case before the Court and in consideration of the situation, the impugned order be set aside subject to payment of cost of Rs.10,000/-(Rupees Ten Thousand only) within 10 days from date. The defendant/ petitioner shall deposit such cost in favour of State Legal Services Authorities, West Bengal, within the aforesaid date. If such amount is paid within the aforesaid date, the impugned order shall stand set aside, and the learned Court below shall dispose of the application under Section 5 of Limitation Act afresh without being influenced by this order in default of payment cost the impugned order shall stand confirmed.

The revisional application is disposed of in the manner, as stated above.

There will be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.