M.N.ROY, J. - (1.) This is an application for condoning the delay in preferring the appeal, which according to the Stamp reporter of this Court, was 4 days, but the answering Respondents claimed such delay to be much more.
(2.) It would appear that on or about 25th September 1984, in Civil Rule No.13194 (W) of 1983 (Sankar Biswas v. State of West Bengal), the learned trial Judge, after overriding the orders as passed by other Division Benches of this Court, had directed as under :- "There will be an interim order of status quo as on today confined only to the petitioners. The Respondents will be at liberty to proceed against any other party who may be involved in the matter which is the subject-matter of the present rule and this interim order of status quo will not stand in the way of State Government taking any steps in obtaining sanction under S. 197 of Cr. P.C. if such sanction is necessary in the case of the petitioners. Affidavit-in-opposition to the main Rule to be filed within one week after long vacation and reply by 19-11-84. Rule and application appear on 26-11-1984 marked before original side. The application would appear as a "part-heard matter" and against such order, the present appeal was presented on 15th Jan. 1985. As indicated earlier, the Stamp reporter has reported the delay in presentation of the appeal to be by four days and he was of the view, that the concerned appeal, taking into consideration, the days required for preferring the same, was in time up to 11th Jan. 1985, but the same was out of time on 15th Jan. 1985. In their application under S.5, the appellants who were Respondents in the writ petition, have stated that the requisition for certified copy of the concerned order was filed on 29th Oct. 1984 by their learned Advocate and this Court remained closed for Puja vacation on and from 27th Sept. 1984 to 28th Oct. 1984 and reopened on 29th Oct. 1984. It has also been stated that the folio requisition for the certified copies were notified on 8th Jan.1985 and they were furnished on the same day. It has further been stated that the certified copy was made ready for delivery on 11th Jan. 1985, which was a Friday. It has been stated that on that date the learned Advocate's Clerk, Shri Tapan Kumar Biswas could not go to the department in the afternoon and the said Shri Biswas and his master had left the Court on that day, early. It has also been stated that the following day being 12th Jan. 1985, was a Saturday, when the Court was closed and as such, the clerk concerned did not come to Court. It has further been stated that on 14th Jan. 1985, which was a Monday, the said clerk did not come to Court at all, as after going to his village home, he felt ill and on 15th January 1985, he went to the department and found that the certified copy was lying ready since 11th Jan. 1985, for delivery. Such being the position, it has been stated that there was admittedly four days' delay in presenting the appeal and such delay should be condoned, as the appellants were prevented by just and sufficient cause from presenting the appeal in time and in any event, they were not at fault. It should be noted that at the time of filing the application under S.5, which was affirmed on 17th Jan. 1985, there was no affidavit filed by the clerk concerned.
(3.) When the application was taken up for consideration on 28th Feb. 1985, the points as mentioned hereinbefore, having been taken by the answering Respondents before us, we had requested the Stamp reporter of this Court, to give a comprehensive report, after giving his reasons as to how the appeal was stated to be presented out of time by four days and not more than those days as claimed by the answering Respondents. The Stamp reporter, after hearing the parties and considering their submissions before him, on 25th Mar. 1985, has reported that the office remained open on Saturday the 27th Oct. 1984, but according to him, that fact would not make any difference, in view of the decision in the case of Bhaya Lal Saha v. Smt. Ranu Bala De (1972) 76 Cal WN 778. That was a determination by the learned Division Bench, on a reference being made by Amiya Kumar Mookerjee, J. as his Lordship then was, since his Lordship felt that there was conflict of opinions in this Court on the applicability of the "Maxim de minimis non curat lex". It would be apparent that at the time of hearing, the petitioners before the Division Bench, made no reference to that Maxim at all, but contended that the deposit made on 17th Jan. 1966, as made in that case, should be deemed to be one required to be made on 15th Jan. 1966, inasmuch as the Court did not sit for the whole day on 15th Jan. which was a Saturday. Their Lordships of the Division Bench, on facts, have found that the defendants were under statutory obligation of depositing the rent month by month under S.17(1) of the West Bengal Premises Tenancy Act, 1956. They deposited the rent for Dec. 1965 on 17th Jan. 1966, instead of depositing it on 15th Jan. 1966. The Court did not sit for the whole day on 15th Jan. which was a Saturday and on such facts, it has been held that the deposit made on 17th Jan. should be deemed to be deposited in the discharge of the defendants' statutory liability under S.17 of the Act, by reasons of the Explanation to S.4 of the Limitation Act 1963. In view of such observations, the Stamp reporter has further recorded that the contentions of the learned Advocate for the Respondents were not appropriate and tenable.;