STATE OF WEST BENGAL Vs. NRIPENDRA NATH BANERJEE

JUDGEMENT

(1.) The appeal has been filed by the State about 80 days after the period prescribed. But the application for extension of time under Section 5 of the Limitation Act and also the application for stay of the operation of the judgment have been filed about 6 years after. This, by itself, should, in my view, be a very important consideration in declining the stay prayed for, even if we find sufficient cause to condone the delay in presenting the appeal. If the State could wait for so many years without taking any step towards admission of the appeal on condonation of delay and, therefore, without any order of stay, there is nothing on record to show that it would suffer any irreparable injury without any curial interdiction till the hearing of the appeal, even if we admit the appeal on condonation of the delay.

(2.) Be it, however, noted that the learned counsel for the Respondent has not disputed that the State appellant can be regarded to have made out sufficient cause for not being able to prefer the appeal before the date on which it was actually presented about 80 days after the period prescribed. But what he has very seriously urged is that the fact that the application for condonation is now being filed about 6 years thereafter goes to demonstrate such negligence, inaction and want of care and caution as to disentitle the appellant to any extention of period. The learned counsel has in fact urged what was observed by the Supreme Court in Ramlal v. Rewa Coalfields, (AIR 1962 SC 361 : 1961 All LJ 815) to the effect that "even after sufficient cause has been shown, the party is not entitled to condonation of delay in question as of right" but "discretion is given to the Court to condone the delay". And the learned counsel has argued that, assuming that there was sufficient cause for not preferring this appeal in time and filing it about 80 days thereafter, we must not exercise our discretion to condone the delay in view of the magnitude of negligence and inaction demonstrated by the State in applying for condonation after such a long lapse.

(3.) As pointed out in the Division Bench decisions of this Court in Somenath v. Vivek 92 Calcutta Weekly Notes 558 : (AIR 1988 Cal 366) and in State of West Bengal v. West Bengal Judicial Service Association, 1990-2 Calcutta High Court Notes 162), as a result of later Supreme Court decisions in Mst. Katji, AIR 1987 SC 1353 and in G. Rameyowada 1988-2 Supreme Court Cases 142 : (AIR 1988 SC 897) the apparent rigour of the observations in Ramlal AIR 1962 SC 361 : (1961) All LJ 815) (supra) to the effect that delay may not be condoned even on proof of sufficient cause therefor, or that each day's delay is to be explained, has stood abated, mollified and modified. But that apart, there are also clear observations in Ramlal itself (supra, at 365) to the effect that the explanation for the delay must relate only to the period from the expiry of the last date to the date of presentation of the appeal, and any inaction or negligence during any period anterior to the last date is irrelevant and immaterial. Therefore, if the appellant is under the obligation to explain only the period which is beyond the period prescribed up to the date of its actual presentation, his action or inaction during any other period, whether prior or subsequent, to the period of delay made in preferring the appeal, should be of no consequence and is not be taken into consideration in considering the question of condonation of delay under Section 5 of the Limitation Act.