HON’BLE MR. SUDEB MITRA, PRESIDING MEMBER 

Order No. : 05

Date : 24.04.2023

This is an application filed vide IA/66/2022 by which the appellant of this Appeal No. 9/2022 i.e. Dr. Kalyan Mitra has prayed for condonation of delay in filing the Appeal No. 9/2022 which he had preferred when his filed CC no. 77 of 2017 was dismissed on contest against the OP of said CC/77/2017, Swapan Mondal, proprietor of Apurba Furniture on 06.09.2022 by the Ld. DCDRC, PurbaBardhaman.

By filing the instant petition prays for condonation of delay in preferring the Appeal No. A/9/2022 before this Commission, the petitioner/appellant Dr. Kalyan Mitra contended that the contested judgement of CC/77/2017 was pronounced on 06.09.2022 and soon, thereafter, he had applied for procurement of certified copy of judgement copy of the judgement of CC/77/2017 and the same was obtained by the petitioner/appellant Mr. Kalyan Mitra on 16.09.2022 and since he had no option to file the Appeal against the judgement of CC/77/2017 before his procuring the certified copy of the judgement of said complaint case CC/77/2017, before obtaining the certified copy of the impugned final order of CC/77/2017 dated 06.09.2022, so immediately after obtaining the certified copy of the impugned final order of CC/77/2017 on 16.09.2022, the petitioner/appellant Dr. Kalyan Mitra had contacted to his Ld. Counsel for filing Appeal.

This is pressed by the appellant/petitioner that he was informed by his Ld. Counsel that through Appeal has to be filed within 45 days from the date of impugned final order, yet as Complaint Case of the impugned final order of CC/77/2017 could be procured on 16.09.2022 and it is pressed by the petitioner side that he was informed that the time for obtaining the certified copy of the impugned final order of CC/77/2017 shall be excluded from the time of calculating 45 days from 06.09.2022 i.e. the date of disposal of impugned final order of CC/77/2017 and that shall be counted from 16.09.2022 when the CC of final order of CC/77/2017 could be obtained.

It is also contented form the end of the complainant/petitioner of IA/66/2022 Dr. Kalyan Mitra that he was further informed by his Ld. Counsel that Durga Puja was to commence from 01.10.2022 and Hon’ble State Commission would remain closed for some days and his Ld. Counsel will remain preoccupied with family matters and on calculation 31.10.2022 was fixed for filing the instant Appeal NO. 9/2022 against the impugned judgement of CC/77/2017 dated 06.09.2022 before this Hon’ble W.B.S.C.D.R.C..

This is the specific contention of the petitioner/appellant that as he was posted at Maldah as doctor under WBHS and as per duty schedule he was entitled to get leave only on Saturday and Sunday, so it was determined that after the resumption of the functions of the courts after puja holidays, necessary requirements and steps to be needed to file this Appeal will be assailable and the complainant would  come to Burdwan Courts, swear affidavit before Notary and file the Appeal. It is contended by the appellant/petitioner that on 27.10.2022 during puja vacation one of senior Ld. Counsels of Burdwan Bar H. Mondal expired on 27.10.2022 and on 29.10.2022 the local Bar of Burdwan referred from during legal practice. So, on 29.10.2022 the Appeal could not be filed and as a result since the appellant/petitioner had to attend his duties at Maldah and as he could not come up before next Saturday i.e. 05.11.2022 so, after observing all the pertinent procedures the appellant could file the Appeal No. 9/2022 on 07.11.2022.

By filing the instant prayer the appellant/petitioner has prayed for condonation of delay in filing the Appeal No. 9/2022 and prayed that according to his calculation there was delay of 17 days calculated from the date of final order passed in CC/77/2017 which may be condoned.

Heard both sides. Perused the available materials on record. Considered.

Now the moot question for determination is to assess as to whether this delay in filing the Appeal is duly reasoned by cogent explanation to entertain the instant petition for condonation of delay in filing the Appeal No. 9/2022 before this Commission.

This forthcoming from the available materials on record that the final order of CC/77/2017 was pronounced on 06.09.2022. One day i.e. 16.09.2022 is taken for filing application and procuring the said final order of CC/77/2017 dated 06.09.2022.

However, Puja Vacation intervened in the Hon’ble SCDRC from 01.10.2022 to 10.10.2022 and again from 22.10.2022 to 27.10.2022. It is needless to reiterate that puja vacation period in concerned Civil Courts of the District Judiciary of West Bengal covred more span of time than the aforestated period of Puja Vacation in this Hon’ble Commission.

On the other hand, it is to be taken into consideration that since CC/77/2017 was filed on 29.05.2017 so the period of filing of Appeal against judgement of CC/77/2017 is scheduled to be ground as per scopes of Sec. 15 of C.P. Act of 1986 and that provided 30 days’ time to file/preferred the Appeal against the order of the Ld. DCDRC/SCDRC before the Hon’ble SCDRC.

For that reason, the period of filing the instant Appeal should have been 30 days from the date of pronouncement of order of CC/77/2017 on 06.09.2022. However, the date of filing and procuring copy of the impugned order and puja holidays should have to be taken into consideration to be excluded from this time stipulation of 30 days as contemplated in filing the Appeal as per Sec. 14 of the C.P. Act 1986 which practically governs the time stipulation in filing appeal in this case.

The complainant/petitioner has given cogent reasoning and explanations of the delay in lodging this Appeal No. 9/2022 and that practically remained unchallenged.

Though the OP side cited 2022 Lui Law Sec. 227 in Ligeswaran etc.  VS. Thirunalaingam (Spl Leave Appeal (c) No. 2054-2055/22 dated 25.02.2022, P.B. Gorerdhana VS Land Acquisition Officer reported in (2013) 10 SCC 765 and M.D. Shah VS. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157 from where the ratio of decisions reflect that unexplained delay does not permit the condonation of delay and the Court has no power to extend the period of limitation on equitable ground and law of limitation is based on public policy, yet in the given circumstances of this case the delay was for a limited span of time and nothing convincing could be found to hold that there was  any intentional delay on the part of the appellant in this case to file the Appeal and delays were unintentionally caused by him in filing the Appeal. No materials could be established by the OP in his petition to show that the delays caused could have been avoided by the complainants of CC/77/2017 of this petition and/or he had deliberate inaction to cause the delay in filing this Appeal and/or he had no sincerity to avoid such delay and to minimise the delay.

The C.P. Act is benevolent legislation so in the backdrop of the factual matrix of the instant complaint case CC/77/2017 and the present petitioner/appellant of the Appeal, namely, Dr. Kalyan Mitra. We feel inclined to appreciate and entertain the reasons for the delay in filing A/9/2022 and thereby we feel to hold that the instant prayer of the appellant/petitioner for condonation of delay in filing the Appeal No. 9/2022 deserves positive consideration and should therefore be allowed.

In this backdrop, the petition of the petitioner/appellant Dr. Kalyan Mitra dated 07.11.2022 praying for condonation of delay in present the Appeal being No. A/9/2022, arising from CC/77/2017 pronounced on 06.09.2022 by the Ld. DCDRC, Purba Bardhaman is allowed on hearing of both sides.

Accordingly, to 07.06.2023 is fixed for hearing of the A/9/2022 before this Commission. Both sides must come ready on the date fixed.