Bhattacharya, J. - (1.) The hearing stems from an application filed by the petitioners/appellants praying for recalling the order dated 29.3.2000 dismissing the appeal for default, supported by an application under Section 5 of the Limitation Act for condonation of delay of about four years eleven months four days.
(2.) The grounds for condonation as borne out in the aforesaid application under Section 5 of the Limitation Act are that on receipt of a notice under Order 21 Rule 22, C.P. Code from the Registrar, Small Causes Court at Calcutta directing the appellants to show cause on 24.2.2005 as to why the Ejectment Execution Case No. 181/2004 filed by the plaintiff/ respondent should not be granted, Mr. Dipak Kumar Mukherjee being engaged to contest the said Execution case came to learn after inspection of records on 24.2.2005 about dismissal of the First Appeal No. 241/81 for default on 29.3.2000. On being contacted by Assistant General Manager (Building II), BSNL, Calcutta Telephones, Mr. Sardar Amjad AN, Senior Advocate who was engaged in the said appeal, reported that as his name had been struck down from the panel of the Central Government Advocates, he returned the brief in 1999 to the Ministry of Law and Justice at Raja Chamber, 4, Kiron Sankar Roy Road, Calcutta-700 001. As the brief could not be traced out in the said office at Raja Chamber, Mr. Sardar Amjad Ali, on request, made over a Xerox copy of the Paper Book. Neither the Advocates-on-record nor the Ministry of Law & Justice at Raja Chamber intimated the petitioners about the above order of dismissal of the Appeal nor the petitioners had any knowledge about return of the brief by Mr. Sardar Amjad Ali, to the Ministry of Law & Justice and they came to know of the above order of dismissal only on 24.2.2005.
(3.) Mr. Mukherjee, learned Counsel for the petitioner, on referring as many as six decisions viz. Rafiq v. Munshilal, reported in AIR 1981 SC 1400, Radha Krishna Rai v. Allahabad Bank, reported in (2000)9 SCC 733, N. Balakrishnanv. M. Krishnamurthy, reported in JT (1998)6 SC 242 :1998 WBLR (SC) 367, M. K. Prasad v. P.Arumugam, reported in JT (2001)6 SC 55 : 2001 WBLR (SC) 542, Municipal Corporation, Gwalior v. Ramcharan (D), reported in JT (2002)4 SC 346 : 2002 WBLR (SC) 764 and CR No. 3251 (F)/2002-Kedarnath Jute Manufacturing Co. Ltd. v. State of West Bengal (un-reported) advanced argument contending that on the fact aforesaid when there was no intimation to the petitioners either from the engaged senior Counsel Mr. Sardar Amjad Ali or from the Ministry of Law & Justice at Raja Chamber, 4 Keron Shankar Roy Road, Calcutta-700 001 regarding return of the brief in 1999 on account of striking out the name of Mr. Sardar Amjad Ali from the panel of Central Government Advocates nor the petitioners had any knowledge about the order of dismissal of the appeal for default on 29.3.2000 due to non-appearance of any person on behalf of the appellants earlier to 24.2.2005, delay should be condoned particularly when after preparation of paper books no duty was cast upon the appellants to perform in the subject of appeal and there was no laches or negligence on their part in prosecuting the appeal. On referring to the challans Mr. Mukherjee further contended that still now his clients have been depositing amount regularly month by month as per order of this Court which shows their diligence in prosecuting the appeal. Mr. Das, learned Counsel for the respondent, on the other hand, on referring four decision viz. Ramlal & Ors. v. Rewa Coalfields Ltd., reported in AIR 1962 SC 361, Income Tax Officer, 'F' Ward Dist. IV (3), Calcutta & Anr. v. Indian Overseas Corporation, reported in (1993)1 Cal LT (HC) 132, Oriental Insurance Co. Ltd.v. Sabita Roy, reported in (1997)1 Cal LT (HC) 24 and Union of India v. Ram Charan, reported in AlR 1964 SC 215 contended that the causes shown by the petitioners cannot be said to be sufficient to justify condonation of such abnormal delay for about five years for recalling the order of dismissal for default of the appeal thereby infringing his clients' valuable right and that when delay has not been properly explained, the application under Section 5 should be dismissed.;