Decided on September 18,2019

Mintu Chowdhury Appellant


Sanjay Karol; CJ. - (1.)The appeal was admitted on the following substantial question of law:
"Whether the finding that the delay has not been explained is in observance of the law or it defies the fundamental tenets of condoning the delay on the basis of assigning sufficient cause?"

Title Suit No.119 of 2015, titled as Shri Mintu Chowdhury v. Haripada Sarkar and others was dismissed on merits by the trial Court vide judgment and decree dated 07.6.2018.

Aggrieved thereof, the plaintiff preferred an appeal annexing an application seeking condonation of delay of 45 days in preferring such appeal. On 14.02.2019, such application seeking condonation of delay was dismissed in default. Consequently, the appeal was also dismissed.

(2.)Having heard learned counsel for the parties as also the record so made available before this Court, during the course of hearing, it is apparent that the appellate court called the matter twice on 14.02.2019 and since learned counsel did not appear, the application was dismissed in default. Learned counsel has explained the reasons and the circumstances for such non-appearance. It is explained that the matter was fixed only for the purposes of filing objection to the application seeking condonation of delay and the presence of the counsel would not have mattered for the appellant, who was to file rejoinder to the objection, which was never filed. In any event, clerk of the counsel was there, who informed the dismissal of the application whereafter immediately remedial steps were taken by the learned counsel.
As such, this Court finds the non-appearance, on the part of the learned counsel as also the party to have been sufficiently explained. Also the delay of 45 days in filing the appeal stands reasonably explained.

(3.)The judgment of the trial Court was delivered on 19.07.2018. Application for obtaining certified copy was immediately filed and copy delivered on 02.08.2018. On 03.08.2018, the learned counsel expressed his desire to the appellant for consulting another advocate, which he did the following day. The said learned counsel, took some time to prepare the appeal, which was eventually filed on 20.08.2018, after inspecting and reconstructing the entire record. The delay, if any, is not attributable to the appellant. He has been diligently pursuing the matter at all times.
As such, the delay of 45 days also stands reasonably explained and is, accordingly, condoned.


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