Form No.

J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side

Present:

The Hon’ble Mr. Justice Shib Sadhan Sadhu, J.

C.R.R. No.3035 of 2014

Suchandra Bhutoria ... Petitioner

Versus

The State of West Bengal & Another

…Opposite Parties

For the Petitioner : Mr. Sabyasachi Banerjee

For the State : Mr. Imran Ali

For the O.P.No.2 : Mr.Sandipan Ganguly

Ms.Sreyashee Biswas

Heard on : January 14, 2015.

Judgment on : January 28, 2015

Shib Sadhan Sadhu, J.

1. By filing the instant Revisional Application the petitioner seeks to

quash/set aside the impugned order No.4 dated 4th September,

2014 passed by the Learned Chief Judge, City Sessions Court,

Calcutta, in Criminal Appeal No.80 of 2014 dismissing the

 application under Section 5 of the Limitation Act, 1963 and

thereby dismissing the Criminal Appeal No.80 of 2014 preferred by

the present petitioner challenging the order dated 3rd March, 2014

passed by the Learned Chief Metropolitan Magistrate, Calcutta in

connection with case No.M-13/2014.

2. The factual background giving rise to the instant application briefly

stated is as follows:-

The present petitioner filed an application on 01.03.2014

under Section 12 read with Sections 17/18/19/20/22 and

23 of the Protection of Women from Domestic Violence Act,

2005 (hereinafter referred to as “the Act”), seeking protection

from domestic violence, maintenance and other reliefs

against her brother-in-law (O.P. NO.2 herein). The Learned

Chief Metropolitan Magistrate, Calcutta on hearing the

learned Advocate for the petitioner granted exparte reliefs

and passed order restraining the O.P. from committing any

Act of Domestic Violence and also directed him to pay an

interim monetary relief to the extent of Rs. 2,00,000/- for

maintenance and Rs.30,000/- towards legal expenses.

Being dissatisfied with such order, the petitioner preferred

an appeal before the Learned Chief Judge, City Sessions

Court, Calcutta under Section 29 of the Act praying for

 modification of the said order dated 03.03.2014 to the extent

directing the O.P.No.2 to pay Rs.1,00,000/- per month as

interim monetary relief. She also filed an application under

Section 5 of the Limitation Act, 1963 praying for condonation

of the delay of 104 days in filing the said appeal. That

appeal was registered as Criminal Appeal No.80 of 2014.

The Learned Chief Judge, City Sessions Court by passing the

impugned order being order No.4 dated 04.09.2014

dismissed the application under Section 5 of the Limitation

Act on the ground that there was delay of 117 days and not

of 104 days as contended by the petitioner and that the

ground for condonation of the delay was not properly

explained nor it was satisfactory. Consequently the appeal

preferred by the present petitioner was also not admitted.

Being aggrieved by the said order the petitioner has now

approached this Court with the instant Revisional

Application.

3. I have heard Mr.Sabyasachi Banerjee, Learned Advocate appearing

for the petitioner and Mr.Sandipan Ganguly, Learned Advocate

appearing on behalf of the Opposite Party No.2. I have also

perused all the available materials on record including the

impugned order and judgment with meticulous care.

4. Mr. Banerjee, Learned Advocate appearing on behalf of the

petitioner, submitted that the petitioner is a helpless and battered

lady and she did not receive any maintenance from the O.P.No.2

and she has been living in a penurious condition. So she was

under financial constraint to pursue the litigation. Further

although she brought the anomaly appearing in the order dated

03.03.2014 before the Learned Additional Sessions Judge after the

present O.P.No.2 preferred an appeal but she could not get any

clarification as to whether she was to receive the amount as

interim maintenance monthly or otherwise. Mr. Banerjee further

submitted that there was some misunderstanding and lack of

communication between the petitioner and her erstwhile Advocate

and after engagement of the new set of Advocates the proper advice

could be obtained and the appeal was preferred. All these factors

caused the delay in presenting the appeal. Therefore, it cannot be

said that there was no sufficient ground in not filing the appeal in

time or that the explanation given by the petitioner for such delay

was not satisfactory. Nor any negligence, inaction or want of bona

fides can be imputed to the petitioner. According to him

“sufficient cause” should be liberally construed by the Court to

apply the law in a meaningful manner which subserves the ends of

justice and not to throttle it by sticking to mere technicalities. On

 such premises he assailed the impugned order and submitted that

it cannot withstand judicial scrutiny and is liable to be set aside.

5. Mr. Ganguly, Learned Advocate appearing on behalf of the

O.P.No.2, on the other hand, submitted that the petitioner has not

at all been able to show sufficient cause so as to impel the Court to

condone the delay in preferring the appeal. On the contrary her

conduct demonstrates that she was negligent and she consciously

allowed the time to bide over. He further submitted that in her

application under Section 5 of the Limitation Act, she did not

specify anything explaining cogently or convincingly the reason for

such inordinate delay in filing the appeal. What she alleged was

vague and smacks mala fide on her part. Therefore, the Learned

Sessions Judge was quite justified in observing that she had only

put the entire blame upon her legal counsel without mentioning

his name or when she contacted him nor did she mention the date

of receipt of the notice of the appeal. The Learned Sessions Judge,

therefore, rightly held that the delay had not been properly

explained nor the ground of delay assigned by the petitioner was

satisfactory at all. He submitted further that a liberal construction

of Section 5 can be made only where there is no negligence,

inaction or want of bona fide on the part of the appellant. But

since in the instant case the petitioner could not explain the delay
 satisfactorily and she failed to establish any specific cause the

Learned Sessions Judge has rightly refused to entertain the

appeal. On such backdrop this Court should not interfere with the

discretion properly exercised by the Learned Sessions Judge and

the impugned order be allowed to stand as it is. He relied on the

decision reported in AIR 1969 Calcutta 381 (Soorajmull Nagarmal

V. Golden and Fibre Products).

6. Having regard to the rival submission and contention advanced by

the Learned Advocates in the light of the decision placed, I would

like to say that in exercising discretion under Section 5 of the

Limitation Act, 1963 Court’s approach should be pragmatic. The

Hon’ble Supreme Court in the case of the Collector, Land

Acquisition, Anantnag and Another Vs. Mst Katiji & Ors. (1987) 2

SCC 107: (AIR 1987 SC 1353) observed that : -

“3.The legislature has conferred the power to condone delay

by enacting Section 5 of the Indian Limitation Act of 1963 in

order to enable the Courts to do substantial justice to parties

by disposing of matters on ‘merits’. The expression

“sufficient cause” employed by the legislature is adequately

elastic to enable the Courts to apply the law in a meaningful

manner which subserves the ends of justice-that being the

life-purpose for the existence of the institution of Courts. It

is common knowledge that this Court has been making a

justifiably liberal approach in matters instituted in this

Court. But the message does not appear to have percolated

down to all the other Courts in the hierarchy. And such a

liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging

an appeal late.

2. Refusing to condone delay can result in a meritorious

matter being thrown out at the very threshold and cause

of justice being defeated. As against this when delay is

condoned the highest that can happen is that a cause

would be decided on merits after hearing the parties.

3. “Every day’s delay must be explained” does not mean

that a pedantic approach should be made. Why not

every hour’s delay, every second’s delay? The doctrine

must be applied in a rational common sense pragmatic

manner.

4. When substantial justice and technical considerations

are pitted against each other, cause of substantial justice

deserves to be preferred for the other side cannot claim to

have vested right in injustice being done because of a

non-deliberate delay.

5. There is no presumption that delay is occasioned

deliberately, or on account of culpable negligence, or on

 account of mala fides. A litigant does not stand to benefit

by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on

account of its power to legalize injustice on technical

grounds but because it is capable of removing injustice

and is expected to do so .……..”

7. Thus, the Hon’ble Supreme Court in Collector, Land Acquisition V.

Katiji & Ors. (AIR 1987 SC 1353) held that the Court has to take

liberal approach in respect of consideration of sufficient cause

shown for condonation of delay so that it subserves the enes of

justice. Ordinarily a litigant does not stand to benefit while lodging

an appeal late and refusing to condone the delay can result in a

meritorious matter being thrown out at the very threshold.

Further, when substantial justice and technical considerations are

pitted against each other, cause of substantial justice deserves to

be preferred.

8. In the present case, the petitioner by preferring the appeal sought

to have a clarification of the impugned order passed by the

Learned Chief Metropolitan Magistrate on 03.03.2014. The

O.P.No.2 has also preferred an appeal against such order which is

still pending. Therefore, if both the appeals are heard together,

there cannot be any prejudice to any of the parties. On the

contrary, if the petitioner is shut up she might lose her substantive

 right. It should be borne in mind that the petitioner is the victim

of domestic violence and she has approached the Court for

protection and vindication of her rights given to her in the said Act.

Therefore, she should not be restrained to ventilate her grievance

by preferring the appeal only on the ground that the same was

presented after some delay. Such attitude will not be in the

interest of justice. When question of substantial justice is pitted

against the technical consideration, the cause of substantial

justice deserves to be preferred and the matter should not be

thrown at the threshold. Taking in to consideration all these

circumstances, I find that the Learned Chief Judge, City Sessions

Court, Calcutta erred in passing the impugned order dated 4th

September, 2014 whereby he declined to condone the delay in

filing the appeal.

9. For the aforesaid reason, this application is allowed. The

impugned order being order No.4 dated 04.09.2014 passed in

Criminal Appeal NO.80 of 2014 is hereby set aside. Consequently

the delay is condoned and the appeal being Criminal Appeal No.80

of 2014 be admitted.

Learned Chief Judge, City Sessions Court, Calcutta is directed to

hear and dispose of both the appeals according to law as early as

possible preferably within three months from the date of

communication of this order.

10. Keeping in view the facts and circumstances of the case, relation

between the parties, nature of the litigation and reliefs prayed for, I

am not inclined to pass any order as to costs.

11. Criminal Section is directed to deliver urgent photostat certified

copy of this judgment to the party, if applied for, as early as

possible.

(Shib Sadhan Sadhu, J.)