Case No: Civil Revision No. 3633 of 1999
Judge: AK Badrul Huq,
Court: High Court Division,,
Advocate: Mr. Bivash Chandra Biswas,,
Citation: 53 DLR (2001) 183
Case Year: 2001
Appellant: Deputy Commissioner and Chairman, District Fisheries Tender Committees and others
Respondent: Md. Aswab Ali and others
Delivery Date: 2000-8-1
High Court Division
(Civil Revisional Jurisdiction)
AK Badrul Huq J
Deputy Commissioner and Chairman, District Fisheries Tender Committees & others\
Md. Aswab Ali and others
…...….……… Opposite Parties
August 1, 2000.
Limitation Act (IX of 1908)
It was the duty of the District Judge to decide the question of Limitation at the first hearing of the appeal. If he felt that delay could not be condoned, proceeding of the appeal could be buried at the initial stage saving the parties from unnecessary harassment. ……………… (22)
Cases Referred To-
Province of East Pakistan Vs. Meajan Ali Ahmed and 15 others, 18 DLR (SC) 343; Province of East Pakistan Vs. Abdul Hamid & Darjee, 21 DLR 824; Superintendent of Central Excise, Lyalipur Vs. Ch Faqir Mohammad 10 DLR (SC) 168; Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Serajganj Vs. Md Abdul Majid and others 2 BLC (AD) 11; Momtazuddin and another Vs. Yakub Ali 46 DLR (AD) 13 and Additional Deputy Commissioner (Revenue) Vs. Md Khairullah and another 49 DLR 472.
Dr. AKM Ali with AB Showkat Ali, Advocates — For the Opposite Parties.
Bhivash Chandra Biswas, Assistant Attorney-General with Nirmalendu Deb, Advocate—For the Petitioners.
Civil Revision No. 3633 of 1999.
AK Badrul Huq J.
The subject-matter challenge in this Civil Revision petition under section 115 of the Code of Civil Procedure is an order dated July 18, 1999 recorded by learned District Judge, Moulvibazar in Title Appeal No. 5 of 1999 rejecting a petition presented by petitioner for condonation of delay of 1038 days and thus, dismissing the appeal.
2. The decision proposed to be recorded in this Civil Revision petition does not call for a detailed recounting of facts except that opposite party Nos. 1 to 12 of this Civil Revision petition as plaintiffs laid a suit being Title Suit No. 18 of 1995 impleading petitioners and opposite party Nos. 13 and 14 as principal-defendants and proforma defendants respectively for a decree of permanent injunction with respect to property described in schedule to plaint.
3. Defendant No.1, Deputy Commissioner, Moulvibazar contested the suit on presentation of a written statement.
4. Learned Assistant Judge awarded a decree in favour of plaintiffs. The judgment and decree is dated 19-2-1996.
5. Defendant No.1 carried an appeal being Title Appeal No.5 of 1999 in the Court of District Judge, Moulvibazar against the aforesaid judgment and decree. There had been a delay of 1038 days in presenting the appeal and an application under section 5 of the Limitation Act had been presented for condonation of the said delay.
6. Learned District Judge by his order No.2 dated 1-2-1999 admitted the appeal provisionally, called for the record, issued notice upon respondents and stayed operation of the judgment and decree of trial Judge. Learned District Judge by order No.4 dated 14-2-1999 directed the parties to maintain status quo in respect of suit property. Learned District Judge by order No.14 dated 23-4-1999 allowed plaintiff respondent’s application for taking additional evidence. Md. Aswab, plaintiff No.1 was examined as PW 1 and the document filed before the learned District Judge were marked as Exhibit-8 series by order No. 18 dated 27-5-1999.
7. Learned District Judge fixed 28-6-1999 for hearing on question of limitation taking the view that the said question being a fundamental question was required to be heard and disposed of. Limitation matter was ultimately heard on 11-7-1999, 18-7-1999 was fixed for recording order.
8. Learned District Judge by order dated 18-7-1999 rejected the application filed under section 5 of the Limitation Act and dismissed the appeal summarily. In recording dismissal of the appeal on rejecting the petition under section 5 of the Limitation Act, learned District Judge took into account all facts and circumstances of the Case and also considered submission and the authorities relied upon by learned Advocates in support of their contentions. Learned District Judge also took into account legal aspect of the matter. Learned District Judge took the view that higher courts took and take lenient view in condoning delay of cases of Government as time is consumed by Government functionaries in presenting appeal. Learned District Judge also found that delay of 1038 days also could be condoned if sufficient cause or reason could be assigned. Learned District Judge found that no sufficient reasons or cause had been assigned for condonation of the long delay of 1038 days. Learned District Judge held that it was improbable that within a period of long three years after the pronouncement of judgment by trial Judge learned Government pleader as well as all Government officials of the District including Deputy Commissioner, Additional Deputy Commissioner (Revenue), Assistant Commissioner, Land and other employees would not be aware of the fact of the suit or could not collect information about the suit. Learned appellate Judge took view that the purpose of law of limitation and public policy would be jeopardized if on taking lenient view delay of three years be condoned. Learned District Judge also took view that the delay of 1038 days if stood condoned that would help and encourage the officers of the Government to be more irresponsible.
9. Feeling dissatisfied, defendants as petitioners invoked this Courts Civil Revisional Jurisdiction on laying a petition under section 115 of the Code of Civil Procedure and obtained present Rule.
10. Petitioners by way of a supplementary affidavit dated 3 1-7-2000 raised contention that due to bonafide mistake and lack of attention of previous Government pleader in informing the result of Title Suit No. 18 of 1995, the instant delay was caused in filing Title Appeal and there was no laches or negligence on the part of petitioners.
Further contention was that when Title Suit No. 18 of 1995 was heard finally on 17-2-1996 Mr Abdul Khaleque was the Government Pleader of District Moulvibazar and he was in his post till 16-9-1996 and after him Mr Bhupati Ranjan Chowdhury was appointed as Government pleader on 17-9-1996 and due to change of the office of Government pleader, the outgoing Government Pleader did not say anything to newly appointed Government Pleader who obtained certified copy of the judgment and decree of trial Court and filed appeal in appellate Court.
11. Mr. Bhivash Chandra Biswas learned Assistant Attorney-General, with Mr. Nirmalendu Deb, learned Advocate appeared for petitioners. Opposite parties are represented by Dr. AKM Ali along with Mr. AB Showkat Ali learned Advocates.
12. The pith and substance of the contentions advanced from the side of petitioners is that Government interest being public interest cannot be allowed to suffer for the laches of individuals and to secure the ends of justice the appeal might be heard on condonation of delay.
13. Countering the said contention it is canvassed from the side of the opposite parties that delay of 1038 days was inordinate and no sufficient cause had been shown in condoning the delay. Province of East Pakistan Vs. Meajan Ali Ahmed and 15 others 18 DLR (SC) 343; Province of East Pakistan Vs. Abdul Hamid Darjee, 21 DLR 824, Superintendent of Central Excise, Lyalipur Vs. Ch Faqir Mohammad 10 DLR (SC) 168; Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Properly, Serajganj Vs. Md Abdul Majid and others 2 BLC (AD) 11; Momtazuddin and another Vs. Yakub Ali 46 DLR (AD) 13 and Additional Deputy Commissioner (Revenue) Vs. Md Khairullah and another 49 DLR 472 had been relied upon from the side of the opposite parties in support of the said contention.
14. The object of law of limitation is deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by parties for own inaction, and negligence. In the matter of condonation of delay, a party is under a strict legal duty to furnish reasonable explanation and to show sufficient cause for condonation of delay more so if the delay is inordinate. If the party fails to assign reasonable explanation or to show sufficient cause or fails to perform his legal duties in placing materials before court explaining delay that delay is not required to be condoned. The fundamental question in determining the question of limitation is whether the delay in presenting an appeal or proceeding has been satisfactorily explained. The question as to whether the delay has been explained or not is to be decided by its own fact and circumstances of each Case.
15. The expression ‘sufficient cause’ should take a liberal construction so as to advance substantial justice. Generally delay in preferring appeal or any proceeding before superior court demands condonation in the interest of justice where no gross negligence, inordinate delay without any valid ground and lack of bonafide are manifested seeking condonation.
16. Keeping in view the above principles of law let me address myself to resolve the controversy whether the petitioner could make out a Case for condonation of inordinate delay of 1038 days in presenting the appeal.
17. Law to a private citizen and Government is equally applicable but so far as the Government matter is concerned, Government may have some leniency in view of process of matters through various agencies and functionaries of Government but that leniency must not be shown to Government when it is manifested that laches, negligence and carelessness is to such a degree where the question of condonation of delay cannot be at all considered
18. On perusal of the application for condonation of delay under section 5 of the Limitation Act, Annexure B, it appears that cause shown or explanation made were very much loose. In paragraph No. 2 of the said application it is stated that the learned Government Pleader at the relevant time did not notice the pronouncement of judgment recorded in suit and did not inform appellants petitioners of the said judgment and decree and nor did he take any step to present an appeal before court and, as such, the appeal could not be presented before appellate Court. In paragraph No. 3 it is stated that respondent No. 4 recently disclosed his success in the suit with respect to suit property and when present Government Pleader on 24-1-1999 went to Sheresta of Court became aware of the decree recorded in the suit. No other ground had been assigned for condonation of delay. Even it is not stated on which date decree-holder respondent disclosed his victory in the suit but only stated recently (ইদানিং). This inordinate delay of 1038 days had not been at all attempted to have been explained properly and the explanation given in the application cannot be at all characterised to be a satisfactory and proper explanation for condonation of such an inordinate delay.
19. Let me now turn to the authorities cited from both the sides in support of respective contentions. A decision is only an authority for what it actually decides. It cannot be quoted for a proposition of law that may seem to flow from it. Each and every judgment is to be read applicable to the particular facts proved or assumed to be proved. The generality of expression that may be found cannot be intended to be expositions of whole law but must be regarded as governed or qualified by the particular facts of the Case in which such expression occurs. The authorities cited from the Bar are not sufficient cause in the matter of condonation of delay and proposition of law is well settled and I am not at all inclined to make an idle parade of discussing those authorities thus encumbering the judgment.
20. This takes me to consider the legality and propriety of the order under challenge in this Civil Revision Petition. Learned District Judge took into account the legal aspect of the matter, fact and circumstances of the case and thereafter, recorded positive decision that there had been gross negligence, laches on the part of Government and no sufficient cause had been assigned for condonation of delay of 1038 days.
21. On examination of decision, reason and conclusion reached by learned District Judge it cannot be at all said that those are tainted with patent illegality, legal infirmity and flagrant error of law warranting any interference by this Court in the exercise of Civil Revisional Authority under section 115 of the Code of Civil Procedure.
22. Before parting I am inclined to record an observation which is of a great public importance. Learned District Judge admitted the appeal provisionally. Thereafter, he called for record of the Case, issued notices and took up many interlocutory matters like recording an order of stay staying the operation of the judgment and decree under appeal and order for maintenance of status quo between the parties with respect to possession of suit property. Learned District Judge recorded the testimony of plaintiff No.1 as PW1 and admitted some documents which have been exhibited as Exhibit 8 series. The proceeding of the appeal before District Judge not only commenced but proceeded to a great extent. Learned District Judge, thereafter, felt that it was imperative on his part to decide the question of limitation being a fundamental question. The procedure adopted by learned District Judge is wholly impermissible and cannot be approved at all. The procedure led to needless expenditure of money incurred by the parties. The time starting from admission of the appeal till the recording of impugned order was unprofitable waste of time. It was the duty of learned District Judge to decide the question of limitation at the first hearing of the appeal and if a court felt that delay could not be condoned, proceeding of the appeal before him would have been stood buried at the initial stage saving the parties from unnecessary harassment.
23. Resultantly, this Rule arising out of Civil Revision Petition got no merit and the same thus stand discharged, however, without any order as to costs.
The order of maintenance of status quo till disposal of Civil Revision Petition granted by this Court on 17-11-1999 stands vacated.