- (1.) This First Miscellaneous Appeal is directed against an order being No. 15 dated 6th February, 2013 passed by the Learned Additional District Judge, Hooghly in Misc. Case. No. 65 of 2011 arising out of Title Appeal No. 119 of 2010 at the instance of the defendant/appellant. The appeal was admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. Subsequently this matter was mentioned by Mr. Roy, learned advocate appearing for the respondents for disposal of this appeal at an early date. Since the plaintiffs/respondents have already entered appearance in this appeal, the appeal is treated as ready as regards service. On the joint prayer of the learned advocates of the parties, we have decided to hear the appeal itself on merit by dispensing with the requirement of filing Paper Book in this appeal. Let us now consider the merit of the appeal in the facts of the instant case. Heard the learned counsel appearing for the parties and considered the materials on record.
(2.) The suit for eviction filed by the plaintiffs/respondents was decreed on contest by the Learned Trial Judge. The defendant/appellant felt aggrieved by the said judgement and decree passed by the Learned Trial Judge. As such, she filed an appeal before the Learned First Appellate Court challenging the decree passed in the eviction suit by the Learned Trial Judge. Since there was some delay in filing the said appeal, an application for condonation of delay was also filed by the defendant/appellant in connection with the said appeal. The appellant's said application for condonation of delay was allowed by the Learned First Appellate Court on 9th June, 2011 subject to payment of cost of Rs. 100/- within a time bound period. Since such cost amount could not be paid by the appellant to the plaintiffs/respondents within the stipulated time, the Section 5 application was ultimately dismissed on 1st July, 2011. Subsequently, the appellant filed an application under Order 41 Rule 11 of the Code of Civil Procedure for readmission of the said appeal by showing the cause which prevented her from paying the cost amount to the plaintiffs/respondents within the stipulated time. It was alleged by her that such cost amount could not be paid to the plaintiffs/ respondents within the stipulated time due to her illness. She further alleged that she had to be admitted in the Chandannagar Hospital on account of such illness.
(3.) The Learned First Appellate Court was not satisfied with the explanation given by the appellant for non-compliance of the Court's order regarding payment of cost within the stipulated time. Accordingly, the appellant's application for readmission of the said appeal was rejected by the Learned Appellate Court. The legality and/or propriety of the said order is under challenge in this appeal before us. It is rightly pointed out by Mr. Roy, learned advocate that when the appeal was not admitted by the Learned First Appellate Court, the appellant could not have taken the aid of Order 41 Rule 19 of the Code of Civil Procedure for readmission of the appeal. He further submits that when the application under Section 5 of the Limitation Act was dismissed for non-compliance of the Court's order, the appellant at best could have applied for recall of the said order under Section 151 of the Code of Civil Procedure. Be that as it may, we do not like to enter into this technicality in the objection raised by Mr. Roy regarding maintainability of the appellant's application under Order 41 Rule 19 of the Code of Civil Procedure filed before the Learned First Appellate Court, simply because of the fact that the substance of the application is necessary to be looked into without looking at nomenclature under which the said application has been captioned. If the substance of the said application is taken into consideration, it goes without saying that the appellant in fact, wanted recall of the said order of dismissal of the Section 5 application so that her appeal is ultimately considered on merit. The fact remains that the medical certificate and prescription of the Doctor regarding the appellant's treatment and her discharge from the hospital were submitted by the appellant before the Learned First Appellate Court. The Learned Appellate Court overlooked those documents while considering the appellant's application for readmission of the said appeal. Considering those medical certificates and/or discharge certificate issued by the concerned hospital relating to the treatment of the defendant/appellant, we are of the view that the appellant was prevented by sufficient reason from complying with the direction regarding payment of cost within the stipulated time. Mr. Roy, learned advocate appearing for the plaintiffs/respondents admits that he has received the cost amount of Rs. 100/- from Mr. Karmakar, learned advocate appearing for the defendant/appellant today. As such, we condone such lapses on the part of the appellant and recall the order of dismissal of the said appeal. We condone the delay in filing the first appeal in the Court below.;