SYED ZAKIR HUSSAIN Vs. ESTATE MANAGER

JUDGEMENT

(1.) An order of eviction was passed against the petitioner being an unauthorised occupant under the Murshidabad Estate (Management of Property) Miscellaneous Provision Act, 1980 by the Estate Manger, appointed under the said Act. The said order of eviction was passed on 16th March, 2009. The petitioner was aggrieved by the said order. Hence, he challenged the propriety of the said order before this Hon'ble Court in its constitutional writ jurisdiction. The said writ petition which was registered as W.P. No. 7429(W) of 2009 was ultimately dismissed on contest by the writ Court on merit. Thus, the order of eviction which was passed by the Estate Manager on 16th March, 2009 was approved by this Hon'ble Court in the aforesaid writ petition.

(2.) Subsequently, the petitioner filed an appeal being Miscellaneous Appeal No. 51 of 2009 for challenging the order passed by the Estate Manager before the learned Chief Judge, City Civil Court at Calcutta. Since the said appeal was filed beyond the prescribed period of limitation, an application for condonation of delay was also filed by the petitioner in the said appeal. It was stated in the said application that due to wrong advice given by the petitioner's learned Advocate, the petitioner instead of filing this appeal earlier, filed the said writ petition before this Hon'ble Court. Subsequently, when the petitioner was apprised of the legal position about the forum of challenge for challenging the propriety of the order of the Estate Manager in appeal before the Chief Judge, City Civil Court at Calcutta, the petitioner filed the instant appeal before the learned Chief Judge, City Civil Court at Calcutta It was further stated in the said application that due to the petitioner's illness for the period from 16th August, 2009 to 25th October, 2009, the said appeal could not be filed immediately after the dismissal of the writ petition. However after recovery from the said illness, the instant appeal was filed by the petitioner on 29th October, 2009.

(3.) The learned Trial Judge rejected the petitioner's said application for condonation of delay by holding inter alia, that delay caused in filing the appeal due to wrong advice of the lawyer on a settled position in law, cannot be a ground for condonation of delay. The learned Trial Judge also disbelieved the petitioner's illness for the said period. Accordingly, the learned Trial Judge rejected the petitioner's said application for condonation of delay.