Calcutta High Court: While dismissing the application filed under Article 227 of the Constitution of India, challenging a judgment and order passed by the Civil Judge (Sr. Division), Alipore, a dingle-judge bench comprising of Ajoy Kumar Mukherjee,* J., found no illegality, irrationality, or procedural impropriety in the lower court order’s to condone the delay and set aside the order of abatement. The Court emphasized that the rules of limitation were not meant to destroy the rights of parties and that the word “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction to advance substantial justice.
The petitioner claims that the opposite party, asserting ownership of the property in question, initiated a suit for eviction against the petitioner regarding the same property. In response, the petitioner filed a Written Statement to contest the suit. During the course of the suit, plaintiff 1-opposite party passed away. The petitioner alleged that no action was taken on behalf of plaintiff 2 to legally substitute the deceased plaintiff’s heirs within the statutory limitation period, causing the suit to abate against plaintiff 1 around 27-09-2012.
It was further contended that on 08-01-2013, the legal heirs of the deceased plaintiff 1 filed an application under Order 22 Rule 9(2) read with Section 151 of the Civil Procedure Code, 1908 and sought to set aside the abatement order regarding plaintiff 1 and substitute themselves as the legal heirs in place of the original plaintiff 1. Additionally, they applied for condonation of the delay in filing this application. The petitioner opposed these applications, asserting that there were discrepancies and deficiencies in the delay condonation application. The court below, however, granted the applications.
Aggrieved by the impugned a judgment and order dated 08-08-2016 passed by the Civil Judge (Sr. Division), Alipore which allowed the above-mentioned applications, the petitioner preferred an application under Article 227 of the Constitution of India, challenging the same.
Whether the delay in filing the application for setting aside the abatement was intentional or due to valid reasons?
Whether the court below erred in its judgment by condoning the delay and setting aside the abatement order?
The petitioner contended that there were substantial discrepancies and deficiencies in the application for condonation of delay, and the trial court erred in allowing it without a trial on evidence. It was contended that the delay should only be condoned when there is no dilatory intent, lack of good faith, deliberate inaction, or negligence on the applicant’s part. It was further argued that plaintiff 2, residing in the same house as plaintiff 1, failed to provide a valid explanation for not taking timely steps to substitute the legal heirs of the deceased plaintiff.
The opposite party contended that according to the suit’s pleadings, both plaintiff 1 and plaintiff 2 were co-owners of the property, therefore, any co-owner had the right to file a suit for eviction against the tenant. Since plaintiff 2 was alive when plaintiff 1 passed away, the right to continue the suit was not extinguished entirely. It was argued that there was a delay of only 102 days in filing the substitution application, and it was not the result of intentional negligence or lack of good faith. It was contended that plaintiff 2 consulted the advocate in June 2012, and it was only due to the bereavement period, the puja vacation, and winter vacation, that the application could not be filed earlier.
The Court found that when plaintiff 1 passed away, plaintiff 2 was still on record, which meant the suit did not abate in its entirety. The Court noted the delay of 102 days in filing the substitution application and the condonation of delay application.
The Court cited N. Balakrishnan v. N. Krishnamurthy, (1998) 7 SCC 123 and Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195, where the Supreme Court emphasized that “sufficient cause” under Section 5 of the Limitation Act, 1963 should be interpreted liberally to advance substantial justice. The Court held that the delay should not be presumed to be deliberate and that the court should show consideration to the party seeking condonation of delay.
The Court determined that the delay in this case was not intentional, and it was caused by bereavement, consultations with an advocate, and court vacations, therefore, the Court held there was “sufficient cause” that had prevented the opposite party from filing the application in time.
The Court held that since the delay and laches on the part of the opposite party were bona fide and unintentional, therefore, the court below was justified in granting the condonation of delay and setting aside the order of abatement.
The Court also emphasized that the jurisdiction under Article 227 should be exercised sparingly and only to correct errors of jurisdiction, not to overturn factual findings.
“The High Court in exercise of its power under Article 227 ordinarily shows indulgence in the order passed by the courts below only to keep such courts within the bounds of their authority, the object being to ensure that law is followed by such courts in exercising jurisdiction which is vested to them.”
The Court dismissed the present application, finding no gross injustice, illegality, or procedural impropriety in the order issued by the court below to condone the delay and set aside the order of abatement.
[Pradeep Mehta v. Col. Biswajit Bhattacharya, 2023 SCC OnLine Cal 3485, order dated 12-10-2023]
*Judgment by Justice Ajoy Kumar Mukherjee
Advocates who appeared in this case :
Mr. Debasish De and Ms. Debanjan De, Counsel for the Petitioner
Mr. Chayan Gupta and Mr. Rajarshi Ganguly, Counsel for the Opposite Party