Manoj Kumar Chakraborty @ Manoj Chakraborty vs Damodar Puitandy

This is an application for condonation of delay in filing the present appeal. Although the applicant/petitioner has calculated the period of delay as 2491 days, according to the additional stamp reporter's calculation, the appeal is out of time by 2263 days.

The reasons mentioned for the delayed filing of the appeal are primarily two in number. First, the appeal was mistakenly filed in Durgapur Court along with a petition under Section 5 of the Limitation Act. It was only by an order dated July 31, 2014 that the learned Judge of the Durgapur Court held that he had no pecuniary jurisdiction to entertain the appeal and returned the memorandum of appeal to the appellant to file it before the proper forum. On April 25, 2015, the applicant/petitioner received summons in connection with an execution case and on the receipt thereof, he met his learned advocate on the very next day. It was only then he came to learn of the order passed on July 31, 2014. He asked his lawyer to obtain a certified copy of the said order.

The second part of the explanation starts from here. The applicant/petitioner alleges that he had asked the clerk of the learned advocate of the Durgapur Court to inform him immediately after obtaining the certified copy of the order dated July 31, 2014. But it was only on June 22, 2016 when the petitioner visited the office of the learned advocate in the Court below, his clerk apologetically handed over the relevant documents informing him that he had forgotten to inform him about the receipt of the certified copies. This application has been contested by the opposite party by filing an affidavit-in-opposition.

We have heard Mr. Mukhopadhyay, the learned advocate for the applicant/petitioner and we have not called Mr. Mukherjee, the learned Senior Counsel for the opposite party.

However, we have perused the affidavit-in-opposition. That there cannot be any doubt that there has been enormous delay in filing the present appeal. The applicant/petitioner seeks to take advantage of Section 14 of the Limitation Act as the times spent in prosecuting the appeal in the Durgapur Court. Even if that period is excluded, the delay in filing the appeal thereafter has not been properly explained warranting a lenient approach by the Court.

It seems that the applicant/petitioner was late in prosecuting his remedies almost at every joint. Even when he filed his appeal in the Durgapur Court, there was delay and the learned Judge had condoned the delay in filing the appeal. Even if that delay was condoned, it merely shows the sense of urgency with which the applicant/petitioner has been prosecuting his remedies. There has been a delay of more than two years after the trial Court in Durgapur returned the memorandum of appeal. If one accepts the case made out by the applicant/petitioner that it was only on April 24, 2016 that he had come to know about the order dated July 31, 2014, it clearly goes to show that he had not been in touch with the learned advocate for well-nigh two years. That after all is no evidence of a diligent litigant prosecuting his remedies in a Court of law.

That apart, the applicant/petitioner if he wanted to rely on the purported delay of the clerk to the learned advocate in the Court below, the application ought to have been accompanied by an affidavit from the clerk to that effect. That not having been done, the suspicion threw up by the opposite party in the affidavit-in-opposition cannot be mis-placed. It is surprising that paragraph 5 of the application where these statements have been made, has been affirmed by the deponent, i.e. the wife of applicant, as true to her knowledge. There is no averment in the application that when the clerk to the learned advocate in the Court below had purportedly apologized to the applicant, he was accompanied by his wife. In the absence of any such pleading, it is not likely that this information should be true to the knowledge of the deponent.

One reason mentioned by the applicant/petitioner for the delay in filing the appeal was the severe accident of the applicant's wife. For two reasons, we are not inclined to accept this explanation. First, there are no details about the alleged accident. The petitioner has not mentioned the date when the wife met with an accident, where she was treated and it is not accompanied by any medical certificate, there is no reference to the kind of treatment that she had received. The petitioner if wanted to rely upon the accident of his wife as the reason for not being able to contact the learned advocate of the High Court in time, should not have been left the matter as that and ought to have annexed the purported medical records to the application to lend it a colour of credibility, more so when the petitioner says that the accident was severe in nature.

That apart, if the accident of the wife was the reason that he could not contact the learned advocate, the entire story sought to be built up in the other parts of the application falls through his basic case that because of non-communication by the learned advocate of the Court below about the order passed on July 31, 2014, he did not contact the learned advocate. He cannot take the contrary stand without appreciating that the two are mutually separate and distinctive and if one is true, the other should not be, or alternatively he forgot to mention which of the two was truer than the other.

For the reasons mentioned above, we are of the view that the applicant/petitioner has failed to justify the delay in filing the present appeal. He has not been able to show any cause for condonatin of delay and, therefore, the Court lacks jurisdiction to pass an order as prayed for by him. It is a settled principle of law that a Court assumes jurisdiction to condone the delay in filing an appeal or an application only upon the petitioner's showing that he was prevented by sufficient cause from filing the appeal within the period of limitation. It is only then and then alone the Court assumes jurisdiction to exercise the discretion whether to condone the delay or not. Till such stage the question of exercising discretion does not arise. We are afraid, here the petitioner has not been able to cross the first hurdle asking the Court to come to the second issue.

We find no merit in the application. The application under Section 5 of the Limitation Act being C.A.N. 8073 of 2016 is dismissed.

Re: F.A.T. 332 of 2016

Since we have dismissed the application for condonation of delay in filing the present appeal, the appeal itself is dismissed as barred by limitation.

Re: C.A.N. 8079 of 2016

This is an application for stay in connection with the appeal being F.A.T.

332 of 2016.

Since we have dismissed the appeal as barred by limitation, this application has become infructuous and the same is also dismissed as that.