'Lapses By Advocate, Defendant's Illness': Calcutta High Court Sets Aside Eviction Decree, Condones 496-Day Delay In Filing Appeal

The Calcutta High Court has held that the illness of a litigant coupled with laches on the part of the conducting advocate can constitute “sufficient cause” for condonation of delay under Section 5 of the Limitation Act, and that such applications need only be decided on the touchstone of preponderance of probabilities.Justice Biswaroop Chowdhury allowed a second appeal (SA 34 of 2019) filed by Manoj Kumar Chakraborty (since deceased, represented by legal heirs), setting aside the order of the First Appellate Court which had dismissed his appeal solely on the ground of delay.The appellant had suffered an eviction decree in Title Suit No. 167 of 1993 before the Civil Judge (Senior Division), Alipore. His appeal before the District Judge was dismissed after the court refused to condone a delay of 496 days in filing the appeal. The rejection was challenged before the High Court.The substantial questions of law framed included whether the First Appellate Court was justified in refusing condonation despite medical documents evidencing illness, and whether lapses on the part of the conducting advocate could be treated as sufficient ground for condonation of delay.Before the High Court, the appellants contended that the original defendant was a cardiac patient suffering from multiple ailments since 2003. He had appeared in the suit but was unable to complete cross-examination due to ill health. It was submitted that his condition deteriorated in 2008, leading to repeated hospitalisation and prolonged bed rest. Upon recovery in July 2009, he contacted his lawyer and learnt that the suit had already been decreed in March 2008. The appeal was thereafter filed, though with delay.The respondents opposed the plea, arguing that the medical certificates were unreliable and that there were inconsistencies in the appellant's explanation regarding when and from whom he received information about the decree. It was also contended that the application for condonation was not filed simultaneously with the appeal and that the delay was not bona fide.The High Court examined several Supreme Court precedents including N. Balakrishnan v. M. Krishnamurthy, Ram Nath Sao v. Gobardhan Sao, Inder Singh v. State of Madhya Pradesh and Shivamma v. Karnataka Housing Board on the scope of “sufficient cause” under Section 5 of the Limitation Act.Relying particularly on N. Balakrishnan, the Court reiterated that the length of delay is immaterial and that acceptability of the explanation is the only criterion. It emphasised that refusal to condone delay results in foreclosure of a litigant's remedy and that the expression “sufficient cause” must receive a liberal, justice-oriented construction.The Court found that the medical records indicated hospitalisation and rest advised by doctors, and that the respondent had failed to establish that the medical documents were suspicious. It held that an application for condonation of delay is not required to be proved beyond reasonable doubt but on a preponderance of probabilities.On the issue of advocate's lapse, the Court observed that advocates are officers of the court and litigants ordinarily depend upon them. It noted that although the decree was passed in March 2008, the certified copy was applied for only in November 2008 and delivery was taken much later, indicating laches. The Court held that such lapses on the part of the advocate could constitute sufficient cause for condonation.Holding that the First Appellate Court erred in rejecting the delay condonation plea, the High Court allowed the second appeal. It set aside the order dated April 17, 2015 passed by the Additional District Judge, Alipore, and condoned the delay in filing the first appeal.However, balancing equities, the Court imposed costs of Rs. 4,000/- payable to the respondents and Rs. 1,000/- to the State Legal Services Authority, West Bengal, within three weeks. The First Appellate Court was directed to proceed with the appeal on merits thereafter.Case: Manoj Kumar Chakraborty @ Kajal Chakraborty (Since Deceased) Represented By His Legal Heirs Smt. Pratima Chakraborty & Anr. VERSUS Ayakar Griha Nirman Samabay Samity Ltd. & Anr.Case No: S.A. 34 of 2019Click here to read order

'Lapses By Advocate, Defendant's Illness': Calcutta High Court Sets Aside Eviction Decree, Condones 496-Day Delay In Filing Appeal

Srinjoy Das

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