Second Appeal-370 days Delay Condoned on the ground that the learned advocate who was entrusted to prepare the memorandum of appeal advised that no appeal is required to be filed as the preliminary decree is not challenged before the Court. Even thereafter another advocate, who was entrusted to take steps for preferring the instant appeal could not prepare the same because of his person indisposition and ultimately the appeal came to be filed after a gap of 370 days. It is held that the lapses or negligence on the part of the advocate should not stand in the way of rendering substantial service to the litigant.
CALCUTTA HIGH COURT
CAN 3386 of 2019
with
CAN 3390 of 2019
in
FAT 170 of 2019
Smt. Bijoya Laxmi Parui & Ors
Vs
Dr Rajendranath Parui & Ors
Mrs. Usha Maiti,
Mr. Sukanta Das,
… For the Appellants.
Mr. Sanat Kumar Roy,
Mr. Baidhurya Ghosal,
… For the Respondents.
CAN 3386 of 2019
This is an application for condonation of delay of 370 days in filing the instant appeal against the final decree passed in Title Suit No. 6 of 2015 by learned Civil Judge (Senior Division), Serampur, Hooghly. It is stated in the said application that the learned advocate who was entrusted to prepare the memorandum of appeal advised that no appeal is required to be filed as the preliminary decree is no challenge before this Court.
Even thereafter the another advocate, who was entrusted to take steps for preferring the instant appeal could not prepare the same because of his person indisposition and ultimately the appeal came to be filed after gap of 370 days.
We are not unmindful of the fact that the lapses or negligence on the part of the advocate should not stand in the way of rendering substantial service to the litigant. Even then the explanation offered by the appellants themselves do not show that he took all the reasonable steps required in this regard. Since the preliminary decree is under challenge and in the mean time the final decree has been passed, we feel that dismissal of the application for condonation of delay would cause more injury to the appellant than the respondents. Furthermore, the respondent can be compensated by way of cost.
Accordingly, the application for condonation of delay is allowed.
The delay in preferring the appeal is, hereby, condoned subject to the payment of cost assessed at 300 GMs to the advocate-on-record of the respondents within two weeks from date. In default of the payment of cost, this order shall stand automatically recalled and the application for condonation of delay shall be deemed to have been dismissed by this Court.
CAN 3390 of 2019
This is an application for stay of all further proceedings in Execution Case No 04/02 of 2018 pending before the Civil Judge (Senior Division), Sermpore, Hooghly. The present appeal arises from a final decree passed in the suit on various grounds. Since we have condoned and regularise the appeal, if the execution is allowed to be proceeded with, it would cause irreparable loss and injury to the appellant. It would not be proper rather it would invite anomalous situation ultimately if the appeal is decided in favour of the appellant.
We, therefore, dispose of the application directing the Executing Court not to proceed with the execution case till the disposal of the instant appeal. Let the Lower Court Records be called for through the Special Messenger at the cost of the respondents.
Such costs shall be put in within a week from date. Immediately, after arrival of the Lower Court Records, the office shall examine the same and, if found complete shall issue notice of arrival of Lower Court Records on the learned Advocate for the respondent.
The respondent is directed to prepare and file requisite number of informal paper books-printed, typewritten or cyclostyled, as the case may be -out of court, within six weeks from the date of service of notice of arrival of Lower Court Records and shall file
the same after serving a copy thereof upon Mr. De, appearing for the appellant.
All formalities regarding preparation of paper books are dispensed with, but, the learned advocate for the respondent is directed to incorporate all the relevant documents in the informal paper books. Immediately upon filing of the paper books, the office shall put a seal that the appeal is ready for hearing.
Since respondents are represented before us through learned Advocate Sanat Kumar Roy and Baidurya Ghosal, they undertake to file the vakalatnama in the department within a week from date if not already filed.
The appeal shall be treated ready as regards service. After filing of the paper books, the liberty is granted to the respective parties to pray for early disposal of the instant appeal.
(Hiranmay Bhattacharyya, J)
(Harish Tandon, J)