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Judgment
Heard Mr. S Pandit, learned counsel appearing for the applicants as well as Mr. P Chakraborty, learned counsel appearing for the respondent No.1.
However, when the matter is taken up for consideration there is no representation for the respondents No.2 & 3 despite due notice.
This is an application under Order XLI Rule 3A of the CPC for condoning the delay of 1152 days in filing the appeal against the judgment dated 27.11.2017 delivered in Money Suit No. 11/2016 by the Civil Judge, Senior Division, Court No.4, West Tripura, Agartala.
According to the stamp reporter's report, the delay is of 758 days but what is noticeable is the calculation, is that the period of delay till 23.04.2020 has not been included in the delay because of COVID and the decision of the apex court as reflected in the order passed in Re-Cognizance for Extension of Limitation [Misc. Appl. No. 665/2021 in SMW(C) No. 3/2020]
Mr. Pandit, learned counsel has referred the relevant causes for delay as provided in this application. According to Mr. Pandit, learned counsel there is an issue which needs to be decided in the appeal for substantial justice as the suit proceeded against the appellant-defendants without service of summons.
According to the applicants though their address has been shown as 20B, Congress Exhibition Road, PS Boro Bazar but they are residing at 2B Congress Exhibition Road, PS Karaya and therefore, the summons could not be served. Thereafter, they came across the information about the decree passed in the suit and including the process of preparation of the appeal delay of 1152 days has taken place.
But Mr. Chakraborty, learned counsel contending for the respondent No.1 has robustly controverted the statement by stating that even the plaintiff-respondent No.1 had taken substituted service for ensuring appearance of those defendants.
But the applicants have stated that they are Hindi-speaking people, they only read 'Sanmarg' a Hindi daily having wide circulation at Calcutta. That apart, Mr. Chakraborty, learned counsel has assertively submitted that the address of the applicants, as provided in the plaint, is correct and in that address they had received the registered letter. The applicants, as such, are suppressing the material facts to frustrate the suit or to create unnecessary complications in the process of justice.
But it surfaces from the records that there is no proof that the applicants did receive the summons. We are convinced that since they did not receive the summons from the usual process of the court, perhaps that is why the substituted service was directed. The applicants have made a categorical statement that they are Hindi-speaking and they do not read news paper published in any other language. So the notice published in the Bengali daily, Aajkaal has escaped their gaze.
That apart, the apex court, in the order dated 23.09.2021 in Re-Congizance for extension of limitation, it has been observed that in computing the period of limitation for any suit/appeal/application or proceeding, the period from 15.03.2020 till the 02.10.2021 shall stand excluded.
Even after that period is excluded, the appeal remains barred by delay for a period of 758 days. The only cause the applicants have assigned is that they had no knowledge of the judgment, as the proceeding was ex-parte. To put forward such cause, the detailed pleadings, as were required to be placed, are only conspicuous by absence and we are expressing our anguish about the pleading for explaining such delay.
However, having regard to the ends of substantial justice, as it appears before us that the proceeding was ex-parte and the statement of the applicants that they were not summoned and they were not aware of the proceeding remained uncontroverted, and hence, we are inclined to adopt a liberal approach for condoning the delay, but subject to condition.
The aforesaid delay stands condoned subject to payment of costs of Rs.10,000/- to the respondent No.1 within a period of 30 days from today. Subject to the above condition, this application stands allowed.
The applicant shall make the payment either directly to the Registry or to the counsel of the respondent No.1. The receipt thereof, be placed in the record, if the payment has been made directly to the counsel of respondent No.1.
Only after the receipt is placed on the records or the Registry has received such costs, the appeal will be listed for admission.