CHIRANJIB PROSAD ROY Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Section 115 of the C. P. C. and it is directed against the order of the learned District Judge, Jalpaiguri dated June 7, 1978 condoning the delay and admitting the appeal preferred by the opposite party against the judgment and decree in Money Suit No. 19 of 1974 of the learned Munsif, Alipurduar. The petitioner obtained the said decree against the opposite party on Sept. 29, 1977. The decree was drawn up on Oct. 8, 1977. The opposite party filed the appeal being Money Appeal No. 2 of 1978 before the learned District Judge on Jan. 24, 1978. The opposite party also filed an application under Section 5 of the Limitation Act for condonation of the delay. The grounds alleged by the opposite party were that certified copies of the judgment and decree were received in the Head Office of the opposite party on Dec. 21, 1977. These papers could not however be put up immediately before the Competent Authority for decision regarding filing of the appeal as they were mis-filed with the records of a different suit. After strenuous search the said copies were traced out on Jan. 16, 1978. The decision for filing the appeal was finally made by the Competent Authority on Jan. 21, 1978 and the appeal was presented on Jan. 24, 1978. The petitioner objected to the said prayer of the opposite party for condonation of delay. After hearing the parties, the learned Judge by the impugned order condoned the delay and admitted the appeal. The learned Judge was of opinion that the Railway was a big establishment and it had to defend too many suits filed by different parties and it was quite probable that the copies of the judgment and decree were misfiled with the file of a different case in the Head Office of a Railway. The petitioner has challenged the said decision of the learned Judge in the present Rule.

(2.) The learned Advocate for the petitioner has argued that the learned Judge acted illegally and with material irregularity in condoning the delay and admitting the appeal. It has been contended that the learned Judge did not come to any definite finding and he had no jurisdiction to condone the delay on the ground of probability. The submission of the learned Advocate for the petitioner is that the learned Judge failed to consider that a Railway establishment or Government could not claim any privileged position and they were in no better position than an ordinary litigant. The petitioner has been deprived of a valuable right which accrued to him by lapse of time and the petitioner should not be deprived of the same unless the opposite party succeeds in establishing that there was sufficient cause for the delay in preferring the appeal. The learned Advocate for the petitioner has referred to the case of Inder Singh v. Har-nam Singh and has argued that the Court has no power to en-tend time as a matter of indulgence. He has also referred to the case of Durga Das v. Baru Ram and has contended that in the case of arbitrary and injudicious exercise of discretion, the Appellate Court can interfere. The learned Advocate has also referred to the case of Nrisingha Charan v. Trigunanand (AIR 1938 Pat 413) and has argued that it is the duty of the High Court to carefully disentangle the findings of fact from the inferences which may be drawn from these facts and to review the legal conclusions if erroneous.

(3.) The learned Advocate for the petitioner has also referred to the decisions reported in (Ibrahim v. Dy. Director of Consolidation, Basti); (Special Deputy Collector, Land Acquisition (Industries), Hyderabad v. Nawab Turab Yar Jung); AIR 1978 SC 335 (Indian Statistical Institute v. Associated Builders) and (Union of India v. Ramcharan).