P.C. Phukan, J.@mdashThis is a revision u/s 115 CPC directed against the order dated 20.6.99 passed by the learned Civil Judge, Senior Division, at Agartala in Misc. (Res) Case No. 18/99 dismissing the Defendant-Petitioners'' application u/s 5 of the Limitation Act, 1963 to condone the delay in filing the petition under Order 9 Rule 13 CPC for setting aside the exparte decree dated 24.2.1998 passed in T.S. No. 28 of 1990.
2. I have heard Mr. D.R. Choudhury, learned Counsel for the Defendant-Petitioners as well as Mr. D.B. Sengupta, learned Counsel for the Plaintiff-Respondent. I have also considered the records of the case.
3. The Defendant-Petitioners Nos. 1 and 2 are brOrs. . The Defendant-Petitioner No. 3 is wife of the Defendant-Petitioner No. 2. In the application for condonation of delay filed before the learned Civil Judge, it is stated that the Defendant-Petitioner No. 1 being an illiterate person and the Defendant-Petitioner No. 3 being a woman and a house wife, the Defendant-Petitioner No. 2 alone used to look after the case. He had become seriously ill since 5.3.97, had been bed-ridden for long and was still under treatment. His son Samir also had been suffering from serious heart trouble since January, 1997. He had to go to Calcutta and got his ailing son admitted in B.M. Birola Heart Centre. One of his heart valves was found damaged and he was under treatment till March, 1998. Besides heart ailment, his son was still suffering from respiratory trouble. The Defendant-Petitioner No. 2, himself seriously ill, had to stay in Calcutta for long along with his wife, the Defendant-Petitioner No. 3, for treatment of their son. Under the circumstances, he could not look after the case and could meet his advocate Mr. D.R. Choudhury only on 20.7.98 and came to know from him that in the meantime the case was decreed ex-parte against them on 24.2.1998 and the limitation period of thirty days from that date to file a petition under Order 9 Rule 13 CPC for setting aside the ex-parte decree was already over. His advocate took time from 21.7.98 to 25.7.98 to collect necessary information/papers/copies etc. and then prepared the petition for setting side the ex-parte decree as well as the application for condonation of delay, got the same typed and filed in the Court of the Civil Judge on 28.7.1998. In the application for condonation of delay, the Defendant-Petitioners asserted that the delay was not for any laches and negligence on their part and that if the delay was not condoned, they would suffer irreparable injury. The doctor''s prescriptions and medical certificates in support of illness have been annexed to this application and the averments made therein are supported by an affidavit sworn by the Defendant-Petitioner No. 2.
4. Mr. D.R. Choudhury, learned Counsel for the Defendant-Petitioners, strenuously argues that the impugned order dismissing the application for condonation of delay suffers from illegality and material irregularity and that the learned Civil Judge misinterpreted the decisions of the Apex Court in the matter of condonation of delay, and refers to the decision in
...The expression ''sufficient cause'' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appeal to have percolated down to all the other Courts in the hierarchy. And such liberal approach is adopted on principle as it is realized that:
1. Ordinarily a litigant does not stand to benefit by lodging appeal late.
2 Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. ''Every day''s delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
5. Referring to the above mentioned decision and the decisions in
...That the delay can be condoned if the applicant is successful in proving that the applicant failed to approach the Court within the time prescribed for sufficient cause. However, the Court should adopt a liberal and justice oriented approach. The expression ''Sufficient Cause'' referred to in Section 5 should receive a liberal construction so as to advance substantial justice and generally delays in preferring an appeal are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides can be imputed to the parties seeking condonation of delay. However, all will depend upon facts and circumstances. If some sufficient cause is shown during which the applicant because of certain circumstances failed to approach the Court in time, delay can be condoned. However, that does not mean that mere prayer for condonation of delay is enough. It is also true that while dealing with the matter of condonation, Court should not be over strict and hyper technical and the approach should not be viewed in pedantic manner.
6. Raising objection against the maintainability of this revision u/s 115 Code of Civil Procedure, Mr. D.B. Sengupta, learned Counsel for the Plaintiff-Respondent, submits that obviously the impugned Order is one that the learned Civil Judge had jurisdiction to make, and in making the said Order he neither acted in excess of his jurisdiction nor had assumed jurisdictions not vested in him. Mr. Sengupta further submits that learned Civil Judge did not act in exercise of such jurisdiction illegally or with material irregularity. Mr. Sengupta contends that the question of sufficiently of cause in the matter of condonation of delay is a pure question of fact and the decision on such a question of fact cannot be interfered with by the High Court in revision u/s 115 Code of Civil Procedure. True, this Court also has held in AIR 1984 (NOC) 64 Gauhati that the question whether the effect of the sickness is such that it afforded sufficient cause for failure to present the appeal or application within the prescribed period is one of fact to be decided in the circumstances of the particular case. However, the words ''material irregularity'' occurred in Section 115(I)(C) CPC do not refer to the decision arrived at but to the manner in which the decision is arrived at. If the manner is not proper, the decision arrived at following such improper manner is likely to be incorrect. In the instant case, I am of the view that the manner in which the learned Civil Judge arrived at the decision on the question of sufficiency of cause for the delay was not proper and hence he must be said to have acted in the exercise of his jurisdiction with material irregularity. The reasons for taking such a view are given below.
7. The Defendant-Petitioners pleaded serious illness of the Defendant-Petitioner No. 1 and his son during the relevant dates and on 4.4.96,... did not take any step and the judgment was passed on 30.4.1996...it was set aside and chance was given to the Defendant to produce further evidence but the Defendant did not produce evidence and the judgment was passed again in the year 1998. ...it is not explained why other Defendant No. 1 and 3 took no step when the case is called for giving evidence...." Learned Civil Judge went on repeating in the impugned Order about the lack of diligence on the part of the Defendant-Petitioners in the period prior to 24.2.98, i.e. the date of passing the exparte decree, which shall be relevant consideration while disposing of on merit the petition under Order 9 Rule 13 CPC for setting aside the ex-parte decree. While disposing of the application u/s 5 of the Limitation Act for condonation of delay in filing the petition under Order 9 Rule 13 Code of Civil Procedure, antecedent diligence need not be shown, and the illness during the relevant period between the last day prescribed for filing the petition and the day on which the petition is filed, will afford sufficient ground for executing the delay. In this regard
8. In the impugned order learned Civil Judge has said that the ground of illness of the Defendant-Petitioner No. 2 is supported by some photocopies of certificate of Medical Officer and other reports, and yet he dismissed the condonation application filed by the Defendant-Petitioners setting up illness as cause for the delay. Although learned Civil Judge did not say so in so many words, presumably he did not take into account those medical certificates and reports, the same being photocopies. The Plaintiff-Respondent in para 17.6 of his affidavit-in-opposition, filed in this Court states, "The photocopies of the documents are not admissible in evidence, and hence it is stated that the learned Court below rightly did not take any notice of the photocopies." Thus the learned Civil Judge decided the disputed question of illness against the Defendant-Petitioners without affording to them any opportunity to produce the original medical certificates and reports and thereby acted in the exercise of his jurisdiction with material irregularity within the meaning of Section 115(I)(C) Code of Civil Procedure. I am in agreement with the decision in
9. In the result, the impugned Order dated 20.5.1999 dismissing the application u/s 5 of the Limitation Act for condonation of delay and consequently rejecting the petition under Order 9 Rule 3 CPC on the ground of limitation is set aside. The case is remanded to learned Civil Judge, Senior Division, West Tripura at Agartala for disposal afresh in accordance with law after affording to the Defendant-Petitioners reasonable opportunity to produce the original medical certificates, reports and prescriptions in support of the plea of illness.
10. The parties are hereby directed to appear before the Court below on 19.8.1999 for the purpose of receiving directions of that Court as to further proceedings in the case.
11. Send down the lower Court records alone with a copy of the judgment and order of this Court so as to reach the Court below before 19.8.1999. Within a month from the date of the receipt of the same, the Court below shall dispose of the application u/s 5 of the Limitation Act, 1963.
