MERX EXPONERE Vs. SUBIR RANJAN CHAKRABARATY

JUDGEMENT

(1.) This is an application filed by the Appellant under Section 5 of the Limitation Act seeking condonation of 2628 days delay in filing the present appeal.

(2.) The brief facts, necessary for disposal of the present application, are that the Appellant (Plaintiff before the trial court) had filed a suit for recovery of 209146/- against the Respondents. During the pendency of the suit, the Appellant filed an application under Order I Rule 10 Code of Code of Civil Procedure seeking to implead one Mr. Sandip Ray as a party in view of the fact that initial transaction was with a sole proprietorship firm, of which Sh. Sandeep Ray was the sole proprietor. The sole proprietorship concern was thereafter converted to a private company, which filed the suit before the trial court. The trial court dismissed the said application vide order dated 13.12.2000. Aggrieved by the order of dismissal of the said application, the Appellant herein filed a revision petition which was registered as Civil Revision No. 542/2001. It is not in dispute that along with the said revision petition the Petitioner had made an application seeking stay of further proceedings before the trial court. While issuing notice in the civil revision petition on 18.7.2001 no interim stay was granted. In view thereof, the proceedings in the suit continued before the trial court; parties led their evidence; addressed arguments and the final judgment was delivered on 15.12.2001. Meanwhile the civil revision petition continued to remain pending. The Appellant on 16.3.2007 made a statement before the High Court seeking leave to withdraw the said civil revision petition with liberty to make an application under Order VI Rule 17 Code of Code of Civil Procedure for amendment of the plaint before the trial court. The Appellant thereafter filed an application under Order VI Rule 17 Code of Code of Civil Procedure on 16.4.2007 before the trial court, which was dismissed on 6.7.2007. On 13.8.2007, the Appellant filed a review petition under Order 47 Rule 1 Code of Code of Civil Procedure seeking review of the order dated 6.7.2007, which petition was finally dismissed on 2.6.2008. The Appellant thereafter filed the present appeal in the month of May, 2009 along with an application for condonation of delay.

(3.) The first submission of learned Counsel for the Appellant is that the Appellant was prevented from filing the appeal for cogent reasons as during the pendency of the suit a civil revision petition was filed by the Appellant herein. Counsel further submits that Appellant in all bona fides was diligently pursuing the revision petition and the time spent in pursuing the civil revision should be deducted. Counsel also submits that the Appellant was under the bona fide impression that since a revision petition had been filed and till such time the revision petition would not be decided, it was not necessary to file an appeal. Counsel next submits that the Appellant was hopeful that the revision petition would be decided in his favour and in any case the plaint would have to be amended and the matter heard thereafter. It is submitted that even after the revision petition was withdrawn the Appellant approached the trial court at the earliest by filing an application for amendment of the plaint, which was dismissed and a review petition was filed, which was also dismissed.