SUBRATA GHOSH Vs. MALAYA GHOSH

JUDGEMENT

(1.) This application is at the instance of one of the plaintiffs and is directed against the order dated 16.07.2008 passed by the learned Additional District & Sessions Judge, First Court, Purulia in Misc. Case No.5 of 2007 thereby allowing the application under Section 5 of the Limitation Act praying for condoning the delay in filing the review application.

(2.) The fact of the case in short is that the plaintiff no.1, applicant herein, and the opposite party nos.1 to 5 and their mother (since deceased) filed a title suit bearing no.160 of 1986 in the Court of the learned Assistant District Judge, Purulia for recovery of khas possession of the suit property as described in the schedule of the plaint. That suit was dismissed by the learned trial Judge. Being aggrieved, the applicant and his mother, now deceased, filed the Title Appeal No.12 of 1999 before the learned Additional District Judge, Purulia. At that time, the opposite party nos.1 to 5 were reluctant to joint the applicant to file the appeal disclosing that they have no interest in the subject matter and as such, the applicant made them as proforma respondents in the appeal. That title appeal was allowed in part directing the respondent nos.1 & 2 to pay compensation to the appellants in respect of excess .77 acres of land within three months. The opposite party nos.1 to 5 herein appeared before the learned Additional District Judge, Purulia by filing vakalatnama and contested the said title appeal but they did not file any written objection. Thereafter, the applicant filed the title execution case no.6 of 2003 for execution of the judgment and decree passed in the title appeal. Long time thereafter about six years, the opposite party nos.1 to 5 filed an application for review of the Misc. Case No.5 of 2007 before the learned Additional District Judge, Purulia and prayed for review of the judgment and decree in Title Appeal No.12 of 1999 dated 03.04.2002 and further prayed for direction to pay compensation to the proforma respondents also. The opposite parties also filed an application under Section 5 of the Limitation Act praying for condonation of delay in filing the review application. That application under Section 5 of the Limitation Act was allowed by the impugned order. Being aggrieved by the said order dated 16.07.2008, the applicant filed this application for setting aside the impugned order.

(3.) Mr. Ghosh, learned Advocate appearing on behalf of the applicant, submits that the opposite party nos.1 to 5 did not join with the applicant in preferring the appeal against the order of dismissal of the suit. In that situation, the applicant had to file the title appeal against the order of dismissal making the opposite party nos.1 to 5 as proforma respondents in the title appeal and they took necessary steps for disposal of the appeal and an award of compensation was granted for acquisition of land by the State of West Bengal. Thereafter, the applicant prayed for execution of the decree for realisation of the dues against the State of West Bengal. At that time, when the application was to get money, the opposite party nos.1 to 5 appeared after a long gap of six years and preferred a review application along with a petition under Section 5 of the Limitation Act. The proforma respondents, i.e., opposite party nos.1 to 5 could not show reasonable ground in support of their delay in taking appropriate steps earlier. He has contended that unless & until the opposite party nos.1 to 5 are not able to offer sufficient reasons for their non-appearance, prayer for condonation of delay should not be granted. In the instant case, the opposite party nos.1 to 5 could not show sufficient reasons in support of non-taking steps earlier. So, the impugned order allowing the application under Section 5 of the Limitation Act cannot be supported and it should be set aside.