Sk. Mofil Mahammad vs Ekram Khan & Ors.

This first miscellaneous appeal arises out of an order being No. 55 dated 20th April, 2015 passed by the learned Additional District Judge, 1st Court at Contai in J. Misc. Case No. 68 of 2011 at the instance of the defendant no.1/appellant.

Let us now consider as to whether the appeal deserves any merit for admission.

The appellant was the defendant no.1 in a suit for partition filed by the plaintiff/respondent no.1. The preliminary decree was passed in the said suit. Challenging the said preliminary decree, an appeal was filed by the defendant no.1/appellant before the learned first appellate court. The said appeal was dismissed for default on 7th March, 2006. Long thereafter on 19th September, 2007, an application under Order 41 Rule 19 of the Code of Civil Procedure was filed by the appellant praying for readmission of the appeal so that the appeal is disposed of on merit.

Since the said application was not filed within the prescribed period of limitation, an application under Section 5 of the Limitation Act was also taken out praying for condonation of delay in filing the appeal. The reason for the delay was explained by the appellant in the said application. It was stated therein that during the period between 3rd February, 2006 and 15th August, 2007, he had been suffering from severe infective viral hepatitis with severe low appetite, acidity and general weakness and he was under treatment of Dr. Pradip Das who certified him to be fit for normal work with effect from 16th August, 2007.

The application under Order 41 Rule 19 of the Code of Civil Procedure was filed by the appellant on 19th September, 2007. No explanation has been given by the appellant for the delay during the period from 18th August, 2007 to 18th September, 2007.

Under such circumstances, the learned first appellate court refused to condone the delay in filing the said application under Order 41 Rule 19 of the Code of Civil Procedure.

We do not find any unreasonableness and/or illegality in the impugned order for which any interference is necessary by this Court in this appeal.

However, Mr. Maity, learned advocate appearing for the appellant submits that his client is agreeable to compensate the loss which the plaintiff/respondent has suffered for the delay in disposing of the appeal and as such, we for the ends of justice, set aside the impugned order and direct for readmission of the appeal subject to payment of cost of Rs. 15,000/- (Rupees fifteen thousand only) by the defendant no.1/appellant to the plaintiff/respondent no.1 and/or his learned advocate in the court below within two weeks from date.

It is made clear that in the event such cost is paid to the plaintiff/respondent no.1 within the time as fixed above, the appeal will be readmitted for hearing and the learned appellate court will make all endeavour to dispose of the said appeal within three months thereafter.

Needless to mention here that in the event such cost amount is not paid by the appellant/defendant no.1 within the time as fixed above, the impugned order dismissing the plaintiff/respondent no.1''s application for condonation of delay, will stand revived.

Both the appeal and the application are, thus, disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.