SK. ABDUL SALAM Vs. MD. ABU ZAFAR MALLICK

JUDGEMENT

(1.) THIS appeal is directed against the order dated March 16, 2009 passed by the learned Additional District Judge, 4th Court, Howrah in Misc. Case No.5 of 2007 arising out of Title Appeal No.19 of 1992 thereby dismissing the application under Section 5 of the Limitation Act in connection with an application under Order 41 Rule 19 of the C.P.C. with regard to the Title Appeal No.19 of 1992. By the impugned order, the learned 1st Appellate Court has rejected the application under Section 5 of the Limitation Act and in consequence, the application under Order 41 Rule 19 of the C.P.C. for readmission of the said appeal has also been rejected. Being aggrieved by such order, this application has been preferred. Now, the question is whether the impugned order should be sustained.

(2.) UPON hearing the learned Counsel for the parties and on going through the materials on record, I find that the appellants preferred the aforesaid Title Appeal No. 19 of 1992 against the judgment and decree passed by the learned Munsif, Amta in Title Suit No.157 of 1987. During the pendency of the said title appeal, the said appeal was dismissed time and again for lapses on the part of the appellants and then restored on the prayer of the appellants so that, the appeal could be disposed of on merits. But, yet there was laches on the part of the appellants.

(3.) THE explanation given by the appellants that the tadbirkar was ill for being suffered from Arthritis for such a long period as indicated above, in my view, is not convincing and the learned 1st Appellate Court, in my view, has rightly held that the explanation given by the appellants for his failure to tender this kind of application, is not plausible at all. The inaction had been done deliberately to prolong the litigation and by lapse of time, the respondents had acquired a right treating the chapter as closed and so, in my view, the learned 1st Appellate Court had rightly rejected the application under Section 5 of the Limitation Act and in consequence the application under Order 41 Rule 19 of the C.P.C.