THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE

Ronita Biswas | National Law University, Orissa | 5th February 2020

Sri Biswanath Pal v. Sri Sankar Nath Pal & Ors. (S.A 8 of 2016 with CAN 9460 of 2019) 

Facts

Title suit No. 12 of 1989 was decreed in the preliminary form on 17^th Dec. 1993. The defendant-Appellant challenged the same in Title Appeal No. 19 of 1994. The appeal was dismissed on contest on 28^th June, 1996 by the Addl. District judge, Hooghly. The second appeal also received the same fate vide the judgement dated 28^th march, 2006.

The court vide order dated 28^th Feb. 1997 directed the trial court to appoint Partition Commissioner to carry on commission work for effecting partition of the suit property, but no final decree was passed during the pendency of the second appeal. The trial court had appointed an advocate, Ashim Ghosh as a Partition Commissioner. He fixed the date 6^th Jan, 2007 for valuation of the suit property. Consequently, the Appellant prayed for adjournment of the proceeding which was rejected by the advocate commissioner. Finally on 19^th Aug. 2009 the advocate commissioner submitted his report which was accepted by the trial court. On the basis of the said report, final decree was drawn on 23^rd Dec. 2009. The Appellant came to know about this final decree in the said partition suit on 10^th may, 2010. Subsequently on 30^thJune, 2010, the Appellant filed an appeal along with an application under s. 5 of the limitation act.

Thus, the said first appeal against the final decree was filed by the defendant-Appellant after lapse of 179 days from the statutory period of limitation. The Appellant pleaded in his application under s. 5 of the limitation act that he was suffering from acute osteo-arthritis of both knees for 6-7 months at the relevant point of time. And he was advised by the doctor to take rest at home. Moreover, the trial court was vacant for a long time. The Appellant had no knowledge that the commission and valuation work were completed by the Advocate Commissioner and the final report was submitted. He did not get any notice of hearing on Commissioner’s report. Therefore final decree for partition was passed behind his back and beyond his knowledge. The First appellate court refused to condone delay of 179 days in filing the appeal on the following grounds-

1. Osteo-arthritis is not a curable disease

2. It appeared to the court that the Appellant was quite fit when he appeared before the court though he alleged that he was suffering from osteo-arthritis.

The court went on disposing the appeal on merit. Thereafter, the defendant-Appellant had challenged the order of rejection of the said application and consequential dismissal of the appeal.

Issue raised 

 Whether the First Appellate Court was justified in rejecting the Appellant’s application under s.5 of the Limitation Act and thereby refusing to condone the delay in filing the present appeal without giving due consideration to the doctor’s certificate which certified the illness of the Appellant which remained uncontested by the Respondents?

Appellant’s contention

The counsel for the Appellant submitted that the lower appellate court had committed substantial error in law in deciding the appeal on merit and consequently rejecting the Appellant’s application under s. 5 of the limitation act. Reliance was placed on the judgement of S. Ganesharaju (Dead) through L.RS and another v. Narasamma (Dead) through L.RS and others (2013 11 SCC 341) wherein the SC held that the expression ‘sufficient cause’ in s. 5 of the Limitation Act has to be given a liable construction so as to advance substantial justice. Unless the Respondents were able to show mala fides in approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. Since sufficient cause has not been defined, thus, the courts are left to exercise their discretion to determine whether prevalent circumstances establish ‘sufficient cause’. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. There is no presumptions that delay in approaching the court is always deliberate.

Respondent’s contention

It was contended by the counsel for the Respondents that it is a well-known principle of law that when there is a merit in appeal, the technicalities should not stand on way in getting the matter heard on merit. Thus, while considering an application for condonation of delay, the court has the right to know whether there is any merit in appeal, or will it be a futile exercise. Reliance was placed on S.V Matha Prasad v. Lalchand Meghraj (2007 14 SCC 722) wherein the SC held that while dealing with an application under Section 5 of the Limitation Act, the court cannot dispose of an appeal on merit.

Held

The Court held that the first appellate court did not even consider whether ‘sufficient cause’ had been established by the Appellant that prevented him to file the appeal within statutory period of limitation. On the contrary, the said application was rejected holding that there was no merit in appeal. The Court opined that the lower appellate court has committed a material illegality by deciding an appeal on merit while considering an application under s. 5 of the Limitation Act.