Haradhan Gupta vs Chandan Kumar Gupta And Ors

Heard Mr. SM Chakraborty, learned senior counsel assisted by Mr. HK Bhowmik and Ms. P Sen, learned counsel appearing for the appellant as well as Mr. S Bhattacharjee, learned counsel appearing for the respondents.

This is an appeal under section 100 of the CPC from the order dated 10.04.2017 passed by the Addl. District Judge, West Tripura, Agartala in TA 33/2016. As consequence of the order dated 10.04.2017 passed in Civil. Misc. (Condo) 42 of 2016, the said appeal has been dismissed. As the first appeal being Title Appeal No. 33 of 2016 under Section 96 of the CPC from the judgment and decree decree dated 17.08.2015 passed in Title Suit (Partition) 12 of 2011 was barred by limitation, an application being Civil Misc. (Condo) 42 f 2016 under Order 41, Rule 3A of the CPC for condonation of delay of 353 days was filed. By the order dated 10.04.2017, the prayer for condonation was dismissed.

The cause assigned by the appellant was on four counts, viz, (i) at the time of passing of the judgment he was away from Agartala, firstly, at Kolkata and thereafter, at his daughter's place at Mumbai; (ii) he fell ill and was treated for a considerable period of time; (iii) his wife also fell ill and was bed-ridden; and (iv) his daughter, since was working in a corporate house in Mumbai, was not in a position to apply for the leave to accompany them to Agartala.

The first appellate court did not find the cause as sufficient and by the impugned order dated 10.04.2017 rejected the condonation petition observing, inter alia, that, no doubt a delay of any numbers of day can be condoned but it should be explained properly. In this case the appellant has not explained anything clearly and he has made contradictory statements in this condonation petition. Even no document relating to treatment from anywhere has been attached with the condonation application. Similarly, even no travel ticket has been attached with the condonation petition.

That apart, the first appellate court did not believe the consumption of time on account of consultation. Since, no document was filed and no better evidence was led to satisfy the court, the first appellate court rejected the explanation and has further observed that, "the appellant has not shown due diligence in prosecuting the case. Therefore, this Court will not exercise the discretionary jurisdiction condoning the delay of 353 days."

As consequence of the order dated 10.04.2017, Title Appeal 33/2016 has been dismissed as time barred.

At the time of admitting this appeal, this Court by the order dated 29.06.2017 framed the following substantial question of law:

"Whether the reason assigned for rejecting the prayer for condonation of delay is perverse?"

Mr. Chakraborty, learned senior counsel has submitted that the appellant is aged 70 years and during the relevant time he was really away from the State. He has fairly admitted that no document in support of illness or travelling to Kolkata or Mumbai was filed before the first appellate court. But the appellant has stated the facts which are shown as grounds in order to make out the cause supported by affidavit.

The first appellate court has observed that the statements are contradictory. Mr. Chakraborty, learned senior counsel to show that such inference was entirely without any foundation has taken this Court through the entire petition filed under Order 41, Rule 3A of the CPC wherein it has been categorically stated how the petitioner was prevented by unavoidable circumstances such as illness of his wife and other eventualities. Mr. Chakraborty, learned senior counsel has relentlessly submitted that even though elaborate statements are not made but general statements have been made to explain that delay and to show, the delay was entirely unintentional.

Mr. S Bhattacharjee, learned counsel appearing for the respondents has, in order to repel the submission of Mr. Charkaborty, learned senior counsel for the appellant, submitted that there is no description of how the delay had occurred. For example, Mr. Bhattacharjee, learned counsel has submitted that this Court even cannot know when the appellant went to Kolkata or, for how many days he stayed at Kolkata or when he went to Mumbai and when he came to know about the developments in the suit.

Mr. Chakraborty, learned senior counsel has stated that the delay has been explained from the day of his knowledge in respect of the judgment as passed by the trial court. The appellant has preferred not to give any reason for the period which was beyond his knowledge. In the circumstances, this Court may accept the assigned cause as the sufficient cause.

On the other hand, in support of his submission, Mr. Bhattacharjee has relied on a decision of the Apex Court in Basawaraj & Anr. Vs. Special Land Acquisition Officer, reported in AIR 2014 SC 746 where it has been observed as follows:

"9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)

In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof that of "sufficient cause".

The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide: Madanlal v. Shyamlal, AIR 2002 SC 100; and Ram Nath Sao @ Ram Nath Sahu & Ors. V. Gobardhan Sao & Ors., AIR 2002 SC 1201.)" [Emphasis added]

Mr. Bhattacharjee has quite stoutly submitted that the appellant has utterly failed to make out any sufficient cause. The deficiency cannot be made up by liberal interpretation. It would be seen that his negligence is inexplicable.

Having appreciated the submissions of the learned counsel for the parties as well as the records as produced before this Court, this Court is of the view that the approach of the appellant is lackadaisical but the question raised in the appeal are of substantive value as the serious inconvenience caused to the appellant has not been taken care of by the Surveyor. Situated thus, the appellant, raised objection before the trial court, urging not to rely on the said report. Despite that, the final decree has been passed having entirely based on the findings of the surveyor.

Without making any comment on the merit of the appeal, this Court is of the view that since prima facie this Court finds that the trial court should have taken more care in respect of the inconvenience and serious difficulties that arose from the demarcation, the appellant may be allowed to avail the remedy of appeal under Section 96 of the CPC. But his lackadaisical attitude, as pointed out by Mr. Bhattacharjee, learned counsel cannot be, at the same time, condoned.

In view of this, the delay of 353 days is condoned by this Court, subject to payment of Rs.10,000/- within 45 days from today to the counsel for the respondent.

A copy of the receipt shall be filed before the first appellate court. Only after filing of the receipt, the first appellate court shall hear the appeal for admission.

Having observed thus, as consequence of the above observation, the impugned orders dated 10.04.2014 passed in Civil Misc. (Condo) 42/2016 and TA 33/2016 are interfered with and set aside. The delay as aforestated stands condoned. The application for condonation stands allowed.

In terms of the above, this appeal is allowed.

Draw the decree accordingly. Send down the records thereafter.