PRASENJIT MANDAL, J. - (1.) THIS appeal is directed against the order dated March 16, 2009 passed by the learned Additional District Judge, 4th Court, Howrah in Misc. Case No.5 of 2007 arising out of Title Appeal No.19 of 1992 thereby dismissing the application under Section 5 of the Limitation Act in connection with an application under Order 41 Rule 19 of the C.P.C. with regard to the Title Appeal No.19 of 1992. By the impugned order, the learned 1st Appellate Court has rejected the application under Section 5 of the Limitation Act and in consequence, the application under Order 41 Rule 19 of the C.P.C. for readmission of the said appeal has also been rejected. Being aggrieved by such order, this application has been preferred. Now, the question is whether the impugned order should be sustained.
(2.) UPON hearing the learned Counsel for the parties and on going through the materials on record, I find that the appellants preferred the aforesaid Title Appeal No. 19 of 1992 against the judgment and decree passed by the learned Munsif, Amta in Title Suit No.157 of 1987. During the pendency of the said title appeal, the said appeal was dismissed time and again for lapses on the part of the appellants and then restored on the prayer of the appellants so that, the appeal could be disposed of on merits. But, yet there was laches on the part of the appellants. In support of allowing the application under Section 5 of the Limitation Act, the appellants have contended that the appellant/tadbirkar of the appeal was suffering from Arthritis and he was under the treatment of a doctor namely, one R. Bag and according to the advice of the doctor, he was under complete rest from November 18, 2004 to April 12, 2007 and as such, he could not take up the appropriate steps in the aforesaid title appeal and for this reason the said title appeal was dismissed for default on August 1, 2006. In support of the contention of the appellants, he has adduced evidence to that effect and he has produced one medical certificate issued by the doctor, R. Bag marked as Annexure -A to show that he was suffering from Arthritis from the aforesaid period and as such under advice of the doctor he had taken complete rest and so, he did not make any tadbir of the said title appeal. The original appellant having lost in the Title Suit No.153 of 1987 for declaration and injunction, preferred the aforesaid title appeal being Title Appeal No.19 of 1992 and, thereafter, I find that the said title appeal was dismissed previously on various grounds and one of the ground is that, the original appellant being the father of the present appellants expired and after a long gap from the date of expiry when the appeal was dismissed for default, the prayer for readmission was made and that was granted subsequently after substitution of the heirs of the original appellant. The present appellants as per materials on record did not take appropriate steps promptly as such, the said title appeal was again dismissed for default as already stated. The appellants/petitioners herein have contended that the tadbirkar of the appeal was suffering from Arthritis and for that reason he was not able to move and as per advice of the doctor, he did not make any tadbir in respect of the said suit. But, I find that the appellant is not alone. He has his brother upon whom the tadbirkar could give proper advice and he might have taken appropriate steps for restoration at earliest point of time. As stated above, the said appeal was dismissed on August 1, 2006. Then they filed an application for restoration under Order 41 Rule 19 of the C.P.C. on April 21, 2007 along with an application under Section 5 of the Limitation Act for condonation of delay and the said application under Section 5 of the Limitation Act was rejected by the order dated March 16, 2009 and in consequence, the application under Order 41 Rule 19 of the C.P.C. was also rejected. The appellants before the learned 1st Appellate Court remained silence for a considerable period even after the death of the original appellant. They did not take appropriate steps for substitution promptly. For that reason, the learned 1st Appellate Court has concluded that the appellants had adopted a protractive and tedious method to keep the appeal alive as much good.
(3.) THE explanation given by the appellants that the tadbirkar was ill for being suffered from Arthritis for such a long period as indicated above, in my view, is not convincing and the learned 1st Appellate Court, in my view, has rightly held that the explanation given by the appellants for his failure to tender this kind of application, is not plausible at all. The inaction had been done deliberately to prolong the litigation and by lapse of time, the respondents had acquired a right treating the chapter as closed and so, in my view, the learned 1st Appellate Court had rightly rejected the application under Section 5 of the Limitation Act and in consequence the application under Order 41 Rule 19 of the C.P.C.;