NAMITA NANDI Vs. SUSANTA KUMAR NANDI AND ORS.

JUDGEMENT

(1.) HEARD learned Advocate for the parties.

(2.) IN the instant revisional application, the propriety of the Order No. 64 dated 1st October, 2013 passed by the learned Additional District Judge, 3rd Court at Barasat in Title Appeal No. 07 of 2003 has been called in question.

(3.) THE learned Counsel for the petitioner in course of hearing submitted that the learned court below was not justified in allowing the application for condonation of inordinate delay in filing the appeal since the opposite parties herein could not assign any cogent explanation what prompted them to file the appeal at the belated stage. Drawing my attention to paragraphs 7 & 8 of the order impugned dated 1st October, 2013, he submitted that the opposite parties/appellants in Title Suit No. 7 of 2003 came to know on 28th August, 2002 that the suit was decreed on 17th April, 2002 but the appeal was filed on 13th January, 2003 and thereby caused delay in filing such appeal for 272 days. Criticising the conduct of the opposite parties/appellants, learned Counsel for the petitioner herein further submitted that the appellants took the plea that there was a talk of compromise between the parties and for that reason they could not come to the court in due time for preferring such appeal which was a myth and such an alibi cannot be considered as a sufficient cause for condonation of delay in filing the appeal as provided by Section 5 of the Limitation Act. In support of his argument, learned Counsel for the petitioner relying on a decision of the Hon'ble Apex Court in the case of Sayeda Akhtar vs. Abdul Ahad reported in : (2003) 7 SCC 52 submitted that the court should not extend time or condone the delay on mere sympathy but sufficient cause has to be shown in the application. Further relying on another decision of the Hon'ble Apex Court in the case of Amalendu Kumar Bera & Ors. vs. State of West Bengal reported in : (2013) 4 SCC 52, he pointed out that the court should take a liberal approach in the matter of condonation of delay when the parties' inaction in preferring the appeal marred by serious laches and negligence in absence of sufficient cause. He with all fairness admitted that the courts always take liberal approach in the matter of condonation of delay but where there are serious laches of negligence on the part of a party to the proceeding, it should not be excused whoever may the party at fault. To fortify his argument he also relied on two other decisions of the Hon'ble Supreme Court reported in : (2011) 3 SCC 545 (Parimal vs. Veena Alias Bharti) and : (2009) 1 SCC 297 (Virender Chaudhary vs. Bharat Petroleum Corporation & Ors.) and clarified that sufficient cause could not be a substitute for inaction or negligence on the part of a party applying for condonation of delay. He further confidently urged that a defaulting party could not be permitted to take part in any proceeding at a belated stage when he did not have any sufficient justified cause resulting deprivation of a party to enjoy the fruit of a decree. In fine, he opined that the learned trial court was not justified in condoning the delay showing sympathy to the opposite parties though they failed to make out any sufficient cause for justifying their claim for condonation of delay.