Page 1 of 6 HIGH COURT OF TRIPURA AGARTALA IA 01 of 2017 in RSA 20 of 2011 (D/O) 1. Md. Aklachur Rahman S/o Late Katan Miah 2. Ms Achia Begam, Wife of Late Inus Ali, 3. Ms Sahanara Begam, D/o Late Inus Ali, 4. Md. Iqbal Ahmed, S/o Late Inus Ali Applicant-defendant-appellant Nos. 3&4 being minors are represented by their mother Ms. Achia Begam. All are residents of Laxminagar, P.O. Kherengjuri, P.S. Churaibari, Dharmanagar, District-North Tripura. ----Applicant-defendant-Appellant(s) Versus 1. Md. Harich Ali, S/o Late Amin Ali, Resident of P.O. Churaibari, P.S. Churaibari, Dharmanagar, District-North Tripura. 2. Ms Jahanara Begam, D/o Late Inus Ali, W/o Md. Emanul Haque, Resident of Village Atkhola, P.O.& P.S. Patharkandi, District-Karinganj, Assam. ----Plaintiff-Respondent(s)-Opposite party. For Applicant(s) : Mr. S Datta, Adv. For Respondent(s) : Mr. P Chakraborty, Adv. Whether fit for reporting : YES HON’BLE MR. JUSTICE ARINDAM LODH Judgment & Order (Oral) 10/05/2018 This is an application under Section 5 of the Limitation Act for condoning the delay of 5 years 10 months and 18 days in connection with RSA 20/2011 (D/O) which was recorded as “dismissed” on 07.09.2011. Page 2 of 6 2. The background of the instant petition for condonation of delay is that the petitioner had filed a second appeal which was registered as RSA 20/2011 against the judgment passed by the learned Addl. District Judge, North Tripura, Dharmanagar on 05.01.2011 in Title Appeal No. 04/2010 between Md. Aklachur Rahman & 3 Ors., defendant-appellants and Md. Harich Ali & Anr., plaintiff-respondents. This Court had directed to issue notice upon all the respondents when the second appeal came up before this Court. 3. From the order dated 02.04.2011 it is revealed that this Court had directed the appellants to issue usual notice which was made returnable on 06.05.2011 and the appellants were to take steps for service of notice upon the respondents by registered post with A/D within seven days. 4. From the order dated 14.06.2011 it is revealed that service report in respect of respondent No. 2 was not received till that day and the court thought it fit to wait for service report with a further order to list the matter on 05.07.2011. On 20.07.2011, when the matter came up before this Court, it was found that no service report was available in respect of respondent No.2 and the matter was posted on 23.08.2011. 5. This Court vide order dated 23.08.2011 observed that though notice was issued upon the respondent No. 2, but the same was not served as the said respondent could not be found and the court directed the appellant to take fresh steps for service of notice upon the respondent No. 2 within seven days by registered post with A/D and the matter was again posted on 30.08.2011. Page 3 of 6 6. On 30.08.2011 when the matter was called upon, none appeared for the appellants. Mr. P Chakraborty, learned counsel appeared for the respondent No.1. This Court had observed that vide order dated 23.08.2011, a direction was issued upon the appellant to take steps for causing service of notice upon the respondent No.2. Despite that direction no steps had been taken. In view of the above and also considering the circumstances, further one week time was allowed to the appellants to take steps for causing service of notice upon the respondent No.2, otherwise, the appeal shall stand dismissed without further reference to this Court and the matter was posted on 06.09.2011. 7. From the office note dated 07.09.2011 it is revealed that no steps were taken within the stipulated time, i.e. till 06.09.2011 in compliance of the order dated 30.08.2011 passed by this Court and as such, the matter was marked as “dismissed”. 8. In the petition for condonation of delay, the petitioner has stated that unfortunately, no steps were taken on behalf of the appellant-applicants herein with respect to the service of summons upon the pro respondent No.2 consequent whereupon the appeal was noted to have been dismissed as is revealed from the office note dated 07.09.2011. They have further stated that the appellants reside in Dharmanagar and were not aware of the order of dismissal of the appeal. All on a sudden, the appellants came to know about the dismissal order on 13.05.2017 after receipt of the information of the filing of the execution case for executing the decree. Soon thereafter, the applicants contacted their learned counsel at Agartala Page 4 of 6 and apprised him of the matter and the learned counsel soon thereafter consulted the records and learnt about the facts of the case that the appeal has been recorded to be dismissed on 07.09.2011. After getting the information, the certified copy of the order dated 30.08.2011 was applied for on 16.05.2017 and was obtained on 02.06.2017. During that time in the months of June and July, 2017 the applicants being Muslims were observing the period of penance in the Ramzan month and finally they came on 26.07.2017 and by that time the delay of 5 years 10 months and 18 days was caused. Hence, this application for condonation of delay. 9. True it is, that Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of “sufficient cause” is purely an individualistic test. Therefore, no two cases can be treated alike. The statute of limitation has left the concept of “sufficient cause” delightfully indefinite thereby leaving to the Court a well intentioned discretion to decide the individual cases where circumstances exist having “sufficient cause”. There are no categories of “sufficient cause”. The categories of “sufficient cause” are never exhausted. Each case separates out a unique experience to be dealt by the court as such. For the aforestated reasons, in each and every case the court has to examine whether the delay in filing the appeal has been properly explained or not. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in prosecution of appeal/petition. Page 5 of 6 10. In the petition, the petitioner-appellants have stated that they were not aware of the passing of the order of dismissal of the appeal and in para 7 they have stated that all on a sudden they gathered the information about their case on 13.05.2017 when they came to learn that the decree was put to execution before the Civil Court, Jr. Div., Dharmanagar. 11. From the order sheets of this Court, it is revealed that this Court had given enough opportunities to the petitioner- appellants to take appropriate steps against the respondent No.2 but they failed to take steps in compliance of the order of this Court. On 30.08.2011 this Court while allowing one week’s time to the appellant to take steps for causing service of notice upon the respondent No.2 observed that failure to take steps would result in dismissal of the appeal without any further reference to this Court. The petitioner-appellants did not take any steps by 06.09.2011 and in compliance of this order dated 30.08.2011, the Registry has recorded the second appeal being RSA 20/2011 as “dismissed”. 12. According to me, the Courts should always take a liberal approach in the matter of condonation of delay, but in a case where there are serious laches or negligence on the part of the petitioner in challenging any order of dismissal, the petitioner cannot be allowed to get the delay condoned. The very approach of the petitioner- appellants is found to be casual. Their conduct shows that they were not at all serious about the proceeding of the case in hand. Firstly, they had failed to take steps in compliance of the order of this Court despite enough opportunities being granted to them and secondly, Page 6 of 6 the petitioner-appellants during the last 5 years 10 months and 18 days did not at all consider necessary to make any inquiry or gather any information about the case they filed before this Court. Had they been reasonably diligent and were interested at all to proceed with the appeal, they ought to have inquired about their case and also could have taken steps by the appropriate time fixed by the Court. The petitioner-appellants also have failed to file the restoration application in time prescribed under the Limitation Act for filing such application, within a reasonable period of time. 13. The conduct of the petitioner-appellants deserves no leniency. The delay, according to me, is not bona fide. The reasonable diligence, which is one of the requirements to condone delay, is found absent, in the case in hand. The liberal view should not be offered when it is found that the approach of the petitioners seeking condonation of delay is very casual and they are negligent in pursuing their case. 14. In the light of the aforesaid discussions, I am of the considered view that this is not a fit case to arrive at a liberal view in favour of the petitioner-appellants. Accordingly, this petition for condonation of delay stands dismissed. There shall, however, be no order as to costs. JUDGE lodh