SANJAY MADANI Vs. GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This is an application under Order XLI Rule 3-A of the Code of Civil Procedure, 1908 (for short, 'the Code') read with Sec. 151 of the Code as well as Sec. 5 of the Limitation Act, 1963 for condoning the delay of 830 days in preferring the accompanying Second Appeal against the judgment and decree dtd. 4/9/2019 passed in Title Appeal No.113/2013 by the learned Civil Judge (Senior Division) No.3 Kamrup (M), Guwahati.

(2.) From a perusal of the said application, it reveals at paragraph 4 that the petitioners/appellants had engaged Shri N.N. Jha and his juniors as their advocate for preparing and conducting the said Title Appeal No. 113/2013 and neither the said learned counsel for the petitioners/appellants nor the builder (the respondent No.5) informed the petitioners/appellants about the dismissal of the Title Appeal No.113/2013 and as such, the petitioners/appellants had no knowledge and information regarding the dismissal of the Title Appeal No.113/2013. It was further mentioned that it was only on 15/2/2024, that the petitioners/appellants came to know about the dismissal of the said appeal when they received a letter from the Chief Executive Officer, GMDA stating that the GMDA is going to demolish the fifth floor of the building 'Golden Residency' in pursuance to the order dtd. 4/9/2019 passed in the Title Appeal No.113/2013 and the petitioners/appellants were directed to vacate their flats within 21 days from the date of receipt of the said letter. It is further the case of the petitioners that they had thereupon obtained the certified copy of the judgment and decree dtd. 4/9/2019 passed in T.A. No.113/2013 on 17/2/2024 and the same was supplied on 22/2/2024. It was, therefore, stated that in view of the order passed by the Supreme Court in Miscellaneous Application No.21/2022 arising out of Suo Moto Civil Writ Petition (Civil) No.3/2020, the period from 23/3/2020 till 28/2/2022 has to be excluded while computing the period of limitation. Further to that in paragraph 8, it was mentioned that after obtaining the required certified copy and the documents, the petitioners/appellants engaged Shri S.P. Roy, Advocate, on 24/4/2024 and the learned counsel thereafter drafted the memo of appeal, stay petition and condonation petition from 25/2/2024 and finished on 1/3/2024 and as such, there was a delay of 1640 days in filing the connected appeal. It was also stated that after excluding 90 days of limitation period as well as 715 days in terms of the order passed by the Supreme Court in Miscellaneous Application No.21/2022, the actual delay is 830 days.

(3.) This Court has duly heard Mr. S.P. Roy, the learned counsel appearing on behalf of the petitioners. Also heard Mr. S Bora, the learned counsel appearing on behalf of the respondents in the GMDA.