S.K.Guin, J. - (1.) This is an application under section 5 of the Limitation Act for condonation of delay in preferring the appeal.
(2.) Admittedly there has been delay of 253 days in preferring the instant appeal and the petitioner-appellant has prayed for its condonation on the ground that delay was caused due to the rules of the executive business of the Government of India and also due to unavoidable circumstances. The petitioners have also contended that there was no laches or negligence on the part of the petitioners in the matter of preferring the instant appeal.
(3.) Under section 5 of the Limitation Act the Court may admit an appeal even after expiry of the prescribed period of limitation if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. It is a matter of discretion with the Court whether it will enlarge the period of limitation or not. Of course, this discretion is a judicial discretion and not arbitrary one. The Court must exercise its discretion with reference to the facts and circumstances of each case. In such exercise of discretion the Court must see whether or not the appellant has acted with reasonable diligence in prosecuting the appeal. While granting such indulgence in favour of the appellant, the Court must be satisfied that there was diligence on the part of the appellant and that he was not guilty of any negligence whatsoever. No hard and fast rules can be laid down as to what constitutes sufficient cause. It must be determined by a reference to the circumstances of each case. In this connection we may refer with approval to a decision of a learned Single Judge of this Court in the case of Beharilal Shaw v. Surendra Singh 92 CWN 595. In that case there was delay to the extent of 67 days in filing an application under sections 17(1), 17(2) and 17(2A) of the West Bengal Premises Tenancy Act. Though the learned trial Judge condoned delay in making such application, the learned Single Judge of this Court, however, held that the learned trial Judge was not justified in condoning the delay. He has further held that a party who wants the discretion vested in Court of law under section 5 of the Limitation Act to be exercised in his favour must prove the case for exercise of such a discretion and that a party asking for such exercise of discretion in his favour must not keep facts up his sleeves but must make full and complete disclosure of related facts. With respect we agree with his view. The petitioner-appellant must disclose all the relevant facts for exercise of such discretion in his favour.;