DUDU MIAH Vs. UTPAL DEB

JUDGEMENT

(1.) THIS appeal under Section 100 of the Code of Civil Procedure (hereinafter called 'CPC'), is directed against the judgment and order, dated 16.07.2010, passsed by the learned District Judge, West Tripura, Agartala, in T.A. No. 08/2010, whereby and whereunder, the learned District Judge rejected the petition for condonation of delay, preferred by the appellants- defendants.

(2.) THE respondents, as plaintiffs, instituted a title suit, seeking right, title, interest and recovery of possession in respect of the suit land, against the defendants. THE defendants, as appellants, contested the claim of the plaintiffs by filing written statement. But, as the written statement was not filed within time, the learned trial Judge refused to accept the same and accordingly the suit proceeded ex parte. Consequently, an ex parte judgment and decree was passed in favour of the plaintiffs. THE defendants, as petitioners, thereafter, filed a petition for setting aside the ex parte judgment and decree and the said prayer was rejected. Dissatisfied with the ex parte judgment and decree, dated 06.03.2009, passed in T.S. No.103/2007 aforesaid, the defendants filed an application, under Order 9 Rule 13 of CPC along with a petition under Section 5 of the Limitation Act i.e. Misc. (Condonation) No.19/2009. THE trial Court rejected the condonation petition and dismissed the said Misc. case as well as the petition for restoration i.e. Misc.(Restoration) No.20/2009 for want of steps. THE learned counsel, appearing for the appellants-defendants again filed a petition for restoration of the said case [Misc. (Restoration) No.20/2009] along with a petition for condonation of delay of 190 days, on the ground that the appellants-defendants did not receive information regarding dismissal of the restoration petition and that due to illness he could not take steps in time. THE said petition for restoration was registered as Misc.(Restoration) Case No.48/2009 and the condonation petition was registered as Misc.(Condonation) No.47/2009. On 21.01.2010, on which date, hearing of the Misc, case regarding condonation of delay was fixed, the learned counsel for the appellants-defendants filed a Hazira but, on being called, the learned counsel was not found present in the Court. THErefore, the learned trial Judge rejected the condonation petition i.e. Misc.(Condonation) No.47/2009 and, the restoration petition i.e. Misc.(Restoration) No.48/2009, vide order, dated 21.1.2010. Aggrieved by the ex parte judgment and decree passed in T.S. No.103/2007 and also failing to get the ex parte decree vacated, the appellants-defendants preferred an appeal, being Title Appeal No.08/2010 before the learned District Judge, West Tripura, Agartala, along with a petition for condonation of delay of 360 days in preferring the appeal, on the grounds that due to absence of the learned counsel and failure of the clerk of the counsel to take necessary steps, the delay was caused in preferring the appeal. According to the appellants-defendants, they are poor cultivators and labourers and they have been possessing the suit land since 1990 through their predecessor-in-interest on the basis of purchase from the owner of the land. By the impugned judgment and order, the learned District Judge, rejected the petition for condonation of delay and, thus, refused to admit the appeal, being Title Appeal No.08/2010, in which the said condonation petition was filed. Challenging the said order of rejection of the condonation petition, filed in respect of the first appeal i.e. Title Appeal No.08/2010, the appellants have come up with this second appeal, on the ground that, in view of the facts and circumstances of this case, the first appellate Court committed error by failing to appreciate that there was no negligence or lapses on the part of the appellants, who were required to rely on the engaged counsel and his clerk, in approaching the first appellate Court. It is the contention of the appellants-defendants that, the learned District Judge committed error by rejecting the petition for condonation of delay, holding that there was negligence, on the part of the appellants-defendants. According to the appellants-defendants, the appeal could not be filed, in time, due to failure on the part of the Advocate's Clerk, in taking steps in time. In the petition, filed under Section 5 of the Limitation Act (i.e. Misc. Condonation No.08/2010), in Title Appeal No.08/2010, the appellants-defendants stated that, they being poor persons, on the advise of the learned counsel, filed a petition for restoration of the suit by setting aside the ex parte decree but, the said petition was rejected. According to the defendants-appellants, the learned counsel, considering the poverty of the appellants, decided to file a petition under Order 9 Rule 13 of CPC but, for the absence of the counsel for the appellants-defendants, the said petition was rejected. It has also been contended, by the petitioners, that the delay was caused due to the lapses on the part of the counsel of the appellants-defendants and as such the appellants-defendants, being illiterate villagers, can't be forced to suffer.

(3.) MR. D.R. Choudhury, learned counsel, appearing for the appellants, has submitted that the appellants, being poor and illiterate villagers, had no other alternative but to depend on the advise of their engaged counsel as well as the clerk of the counsel and that failure of the engaged counsel to file the appeal, can't be sufficient cause to deprive the defendants-appellants from getting justice. It is submitted that, there is nothing on record to show that there was any negligence or intentional latches on the part of the appellants-defendants and as such the learned appellate court, while considering the petition, under Section 5 of the Limitation Act, should have taken a liberal view in rendering substantial justice instead of taking resort to technical grounds. It is also submitted that the appellants- defendants have been residing in the suit land with their huts, thereon, for the last thirty years and as such refusal to entertain the appeal, preferred against the ex parte judgment and decree passed against them, on the technical ground of delay, would deprive them from knocking the door of justice and to substantiate their claim with regard to property, which they have been enjoying for the last several years as their own properties. The learned counsel, has strenuously urged that, for ends of justice, an opportunity should have been given to the appellants-defendants to substantiate their claim and as such the delay ought to have been condoned by taking a liberal view, for ensuring substantial justice. It is also submitted that, no prejudice would be caused to the other side if the appeal, preferred against an ex parte judgment and decree, is heard and decided on merit as per law. In support of his contentions, the learned counsel, has relied on the following decisions :-