NILMADHAV GHORA Vs. ARJUN KUMAR DUTTA AND ANR.

JUDGEMENT

(1.) In this application, being CAN No. 9579 of 2016, as filed by the petitioner, Nilmadhav Ghora, i.e. the defendant of Title Suit No. 122 of 1995 pending before the learned Civil Judge (Junior Division), 3rd Court, South 24 Paraganas at Alipore, has prayed for condonation of delay to the tune of 86 days under Section 5 of the Limitation Act as the review application could not be filed earlier because of his ill health.

(2.) Mr. Kar, the learned Senior Advocate, appearing on behalf of the petitioner took me to paragraph 8 of this application to substantiate the claim of his client that during those days because of his illness, his client was not attending his sweetmeat shop which is located in the suit premises and the shop was being managed by his staff and when the notice of the revisional application of Civil Order No. 2085 of 2013 came to be served by the postal authority, then the postal authority did not hand over the notice to the staff. Mr. Kar took me to the photocopy of one prescription issued by Dr. Somnath Pal dated 16-03-2016 to convince this Court that this petitioner was suffering from Sciatica during the period from 30-01-2016 to 15-03-2016.

(3.) Mr. Kar cited a decision of the Apex Court as reported in (1987) 2 SCC 107 (Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. ) wherein the Apex Court in paragraph 3 opined that a litigant does not stand to benefit by lodging one appeal late, that refusal to condone delay may result in meritorious matter being thrown out, that the theory of "every day's delay must be explained" does not mean that a pedantic approach should be made, that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, that there is no presumption that delay is occasioned deliberately or on account of culpable negligence and further that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so.