Tarun Kumar Gupta, J. - (1.) THIS appeal is directed against judgment and decree dated 20 th May, 2006 passed by learned District Judge at Alipore in Title Appeal No.16 of 2006 thereby affirming the judgment and decree dated 13 th December, 1994 passed by learned Civil Judge (Senior Division) at Baruipur in Title Suit No.29 of 1994.
(2.) THIS Appeal has its checkered history. The facts of said case were noted down in details by learned District Judge in the order impugned. However, for better appreciation of the submissions of learned counsels of the parties it would be worthy to note down the list of dates as supplied by the parties which run as follows:- 2 Sl. No. DATE PARTICULARS 01. 20.06.1988 Suit for eviction being Title No.101 of 1988 was filed by Sachindra Nath Senapati & Ors. against G.N.K. Drugs on the ground of default. 02. 21.12.1989 Title Suit No.101 of 1988 was dismissed as the defendant was given the protection under Section 17(4) of the West Bengal Premises Tenancy Act. 03. 08.02.1994 Title Suit No.29 of 1994 was filed by Sachindra Nath Senapati & Ors. against G.N. K. Drugs for eviction from the suit building on the ground of Second Default. 04. 13.12.1994 Title Suit No.29 of 1994 was decreed ex parte. Defendant after entering appearance in the said suit filed its written statement, but did not contest when the suit was in the Pre-emptory hearing stage. 05. 12.01.1995 The last date for preferring an appeal under Section 96 of the Code of Civil Procedure as well as for filing an application under Order 9 Rule 13 of the Code of Civil 3 Procedure. 06. 09.02.1995 An application was filed under Order 9 Rule 13 of the Code of Civil Procedure being Misc. Case No.9 of 1995 for setting aside the ex parte decree. An application under Section 5 of the Limitation Act was also filed for condonation of delay in filing the said Misc. Case. 07. 1995 Title Execution Case being No.1 of 1995 was filed for executing the decree dated 13.12.1994. 08. 28.12.1996 Learned Trial Judge dismissed the Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure as well as the application under Section 5 of the Limitation Act. 09. 1997 Defendant preferred a Misc. Appeal being No.29 of 1997 against order dated 28.12.1996. 10. 05.03.1998 Learned Appellate Court allowed the Misc. Appeal being No.29 of 1997 11. 1998 Against the order dated 05.03.1998 the plaintiff preferred a Civil Revisional Application being C.O. No.1084 of 1998. 4 12. 13.08.2001 C.O. No.1084 of 1998 was allowed by this Hon?ble Court and the order dated 05.03.1998 was set aside. 13. 2001 Defendant filed an application under Section 115A of the Code of Civil Procedure being C.R. No.523 of 2001 against rejection of Section 5 application. 14. 30.07.2004 Learned Additional District Judge 5 th Court at Alipore was pleased to dismiss the revisional application thereby affirming the order dated 28.12.1996. 15. 2004 Defendant preferred an application under Application 227 of the Constitution of India being C.O. No.2874 of 2004 challenging the order dated 30.07.2004. 16. 11.01.2005 THIS Hon?ble Court dismissed C.O. No.2874 of 2004. 17. 2005 Defendant filed an application under Section 47 of the Code of Civil Procedure being Misc. Case No.3 of 2005 alleging that the notice under Section 13(6) the West Bengal Premises Tenancy Act was not served upon the defendant company. 18. 07.03.2005 Defendant filed an application for review of the order dated 11.01.2005 being R.V.W. No.740 of 2005 5 19. 16.09.2005 THIS Hon?ble Court dismissed review application being R.V.W. No.740 of 2005. 20. 05.01.2006 Defendant filed an application under Order 6 Rule 17 for amendment in Section 47 application. 21. 05.01.2006 Defendant filed an application for striking out the defence of the plaintiff/Decree Holder in Misc. Case No.3 of 2005. 22. 27.01.2006 Title Appeal No.16 of 2006 was filed along with a petition under Section 5 read with Section 14 of the Limitation Act, 1963. 23. 13.01.2006 Plaintiff filed objection to the application dated 05.01.2006 for striking out defence. 24. 20.05.2006 Learned District Judge, Alipore was pleased to dismiss the application under Section 5 read with Section 14 of the Limitation Act for condonation of delay in preferring regular Appeal being Title Appeal No.16 of 2006 against the ex parte decree dated 13.12.1994. At the time of admission of this second appeal the following substantial questions of law were formulated at the instance of the appellant. 6 (I) Whether the learned Appeal Court below failed to appreciate that it is settled law that when an application for condonation of delay is filed then the court should look to the reasons given and not to the period of delay. (II) Whether the learned Appeal Court below ought not to have given so much importance to the fact that the appeal was barred by 11 years, when the appellants have explained the delay in filing the said appeal. (III) Whether the learned Appeal Court below erred in decreeing the instant suit specially when the plaintiff themselves have failed to prove their own case. Admittedly the appeal being Title Appeal No.16 of 2006 against ex parte judgment and decree dated 13 th of December, 1994, passed in Title Suit No.29 of 1994, was filed on 27 th January, 2006 i..e, after about 11 plus years from said judgment and decree. Defendant appellants filed an application under Section 5 read with Section 14 of the Limitation Act praying for condonation of delay. Said delay of 11 plus years was tried to be explained in the petition under Section 5 read with Section 14 of the Limitation Act filed in the Court of learned District Judge on the following grounds:- (i) After passing of ex parte decree in Title Suit No.29 of 1994 on 13 th of December, 1994 the defendant company contacted one Mr. Pankaj Kumar 7 Banerjee, learned advocate for his legal advice. He advised the company to file the Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the ground that any appeal if preferred and dismissed then no Misc. Case under Order 9 Rule 13 of the Code will be maintainable in view of the explanation to Order 9 Rule 13 of the Code of Civil Procedure. (ii) In view of said advice defendant company filed said Misc. Case on 9 th of February, 1995 under Order 9 Rule 13 of the Code of Civil Procedure together with an application under Section 5 of the Limitation Act praying for condonation of delay. (iii) After dismissal of the Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure as well as the application under Section 5 of the Limitation Act by order dated 28 th December, 1996, defendant company again under the advice of learned counsel preferred a Misc. Appeal being No.29 of 1987. (iv) Though learned Appellate Court allowed said Misc. Appeal being 29 of 1997 Vide Order dated 5 th of March, 1998, against said order plaintiff preferred a Civil Revisional Application being C.O. No.1084 of 1998 which was allowed after contested hearing Vide Order 13 of August, 2001 thereby setting aside the order dated 5 th of March, 1998 passed by learned District Judge. 8 (v) Again as per legal advice defendant company filed an application under Section 115 A of the Code of Civil Procedure being C.R. No.523 of 2001 in the District Forum against rejection of application under Section 5 of the Limitation Act. (vi) On dismissal of the same vide Order dated 30 th July, 2004 defendant company preferred an application under Article 227 of the Constitution being C.O. No.2874 of 2004 challenging the order dated 30 th July, 2004. (vii) Said C.O. No.2874 of 2004 was dismissed by Hon?ble Court on 11 th January, 2005 and thereafter the defendant company filed an application for review of said order 11 th January, 2005 being R.V.W. No.740 of 2005, on 7 th March, 2005 which was again dismissed by this Court on 16 th September, 2005. (viii) Thereafter as per advice of a senior lawyer defendant filed Title Appeal No.16 of 2006 against said ex parte decree dated 13 th December, 1994 together with an application under Section 5 of the Limitation Act read with Section 14 of the Limitation Act. (ix) The defendant company was all along diligent and was pursuing the case from one Forum to another as per legal advice and that for wrong advice of learned counsel the party should not suffer and that the delay should be condoned for ends of justice. Mr. Chatterjee, learned counsel for the appellant company, has submitted that learned Lower Appellate Court gave undue stress on the length of the delay (11 plus 9 years) being oblivious of the fact that the explanation for delay and not length of delay is the criteria for disposing of an application under Section 5 of the Limitation Act. In support of his contention he referred a case law State (NCT of Delhi) versus Ahmed Jaan reported in (2008) 14 SCC page 582. He has also referred the case of Balakrishnan vs. Ayyaswami reported in AIR 1983 Madras page 17 wherein it was held that Section 5 contemplates that "the Court has got to place itself in the position of the person concerned and find out if the delay can be said to have resulted from the cause which he has adduced and whether that cause can be regarded, in the peculiar circumstances of his case, as sufficient."
(3.) HE has referred a case Shakti Tubes Limited versus State of Bihar and others reported in (2009) 1 Supreme Court Cases page 786. In that case the scope of Section 14 of Limitation Act was discussed. Mr. Chatterjee has also referred to an old case of Baijnath Sahai vs. Ramgut Singh and others reported in Vol. XXIII ILR page 775 to impress upon this Court that the period spent in pursuing a case in good faith in a Court which from defect of jurisdiction, or other cause of alike nature, was unable to entertain the same, should be excluded for determining the period of limitation. According to Mr. Chatterjee but for the wrong advice of the learned advocate for filing a Misc. Case under Order 9 Rule 13 of the Code of Civil Procedure and 10 then taking various steps in different forums as stated above, the appellant defendant company could have filed an appeal against said ex parte order dated 13 th of December, 1994 straightway and as such the delay in filing said appeal being Title Appeal No.16 of 2006 should have been condoned.;