TAPAN KUMAR CHAKRABORTY vs TAPAS KANTI PANDA AND ORS

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Ajay Kumar Gupta


C.O. No. 167 of 2026

Tapan Kumar Chakraborty
Versus
Tapas Kanti Panda & Ors.





For the Petitioner : Mr. Sounak Bhattacharjee Adv.
Mr. Sounak Mondal, Adv.
Mr. Anirban Saha Roy, Adv.
Ms. Bipasha Bhattacharyya, Adv.

For the Opposite Party No. 3 : Mr. Gobinda Chandra Baidya, Adv.
Mr. Avilash Tripathy, Adv.
Mr. Aminul Islam, Adv.
Mr. Pravash Mondal, Adv.


Heard on : 25.08.2026
Judgment on : 08.09.2026
Uploaded on : 08.09.2026

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Ajay Kumar Gupta, J.:-
1. By filing the instant application under Article 227 of the Constitution
of India, the plaintiff/petitioner has challenged the order being no. 91
dated 17.11.2025 passed by the Learned Civil Judge (Senior
nd
Division), 2 Court at Contai, District- Purba Medinipur in J. Misc.
Case No. 10 of 2020.

2. By the said impugned order, the Trial Court condoned the delay
relying on the grounds shown in the application, and restored the
Judicial Misc. case being No. 01/2013, by allowing the application
filed under Order IX Rule 9 on contest.
3. The brief facts of the case are that the petitioner/plaintiff had filed a
suit for declaration of title and permanent injunction before the
st
Learned Civil Judge (Junior Division), 1 Additional Court at Contai,
District – Purba Medinipur, being Title Suit No. 189 of 2007 against
the predecessor-in-interest of the Opposite parties.

4. The predecessor-in-interest of the opposite parties herein, namely,
Sashi Bhusan Panda, was the original defendant in the suit and
contested the suit by filing a written statement-cum-counter claim,
thereby denying the material allegations contained therein.
5. The parties led their respective evidence. After hearing the parties,
th
the learned Trial Judge, by a judgment and decree dated 24 June,
2011 was pleased to decree the said suit on contest in favour of the

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petitioner/plaintiff and dismiss the counterclaim filed by Sashi
Bhusan Panda.
6. Being aggrieved by and dissatisfied with the judgment and decree
th
dated 24 June, 2011, Sashi Bhushan Panda had filed a Title Appeal
being No. 31 of 2011 before the Learned Civil Judge (Senior Division),
st
1 Court at Contai, District- Purba Medinipur. The said appeal was
transferred to the Court of the Learned Civil Judge (Senior Division),
nd
2 Court at Contai for disposal, and the same was renumbered as
Title Appeal No. 4 of 2012.

7. The learned Appellate Court, by order No. 22 dated 05.01.2013, was
pleased to dismiss the same for non-prosecution since the appellant
did not take steps in the appeal on several occasions.
8. Late Sashi Bhusan Panda filed an application under Order 41 Rule
19 of the CPC for restoration and readmission of the said appeal. The
said application was registered as J. Misc. Case No. 1 of 2013. The
petitioner contested the said application by filing a written objection,
thereby denying the material contentions therein. The Learned
Appellate Court, vide order No. 62 dated 27.01.2015, ultimately
dismissed the same for default.

9. The opposite parties herein, being the legal heirs and representatives,
had filed an application under Order IX Rule 9 read with Section 151
th
of the CPC on 13 October, 2020 along with an application under

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Section 5 of the Limitation Act, inter alia, praying for restoration of J.
Misc. Case No. 1 of 2013. The said application was registered as J.
Misc. Case No. 10 of 2020.
10. After hearing the parties, the learned Appellate Court was pleased to
allow the said application by Order No. 91 dated 17.11.2025, holding
that sufficient and bona fide cause has been shown by the applicants
in filing the application under Order IX Rule 9 of CPC after condoning
the delay of almost 5 years.

11. Learned counsel appearing on behalf of the petitioner submitted that
the Trial Court, while condoning the delay, did not consider the huge
delay in filing the application for restoration at all and acted illegally
in exercising its jurisdiction. The opposite parties did not even specify
the actual number of days of delay and further suppressed the
material facts as regards the knowledge of the pending suit and its
dismissal; rather, the opposite parties committed fraud and
misrepresented the facts before the Appellate Court. They knew about
the dismissal of the Misc. case since 2020.
12. It was further contended that the learned Appellate Court failed to
consider that sufficient explanation was not offered by the opposite
parties for such huge delay, and surreptitiously allowed the
application, holding therein that the procedural laws are meant to
advance the cause of justice and the matters should, as far as

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possible, be decided on merits rather than dismissed on technical
grounds and further observed sufficient causes had been shown
without any discussion or assigning reasons. Therefore, the
application for delay of more than 5 years in filing the application
under Order IX Rule 9 and suppression of facts is required to be
dismissed with exemplary costs.
13. Learned Counsel has placed reliance on the decision of the Supreme
1
Court in the case of H. Guruswamy & Ors. v. A Krishnaiah
stressing the fact that the Court must consider the overall conduct
and surrounding facts of the litigant seeking relief after delay.

14. Learned counsel appearing on behalf of the opposite party no. 3, on
the other hand, vehemently objected to the prayer for setting aside
the impugned order and submitted that the opposite party had
explained sufficient cause of delay in filing the application. The
question of suppression of facts does not arise at all in a dismissed-
for-default case, since it was not decided on merits. Every case must
be decided on its own merits. The Hon’ble Supreme Court has, time
and again, observed that substantial justice should be preferred over
technical justice. The opposite party did not suppress the date when
they came to know about the dismissal.

1
Civil Appeal no. 317 of 2025/2025 INSC 53

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15. Learned counsel further has placed reliance on a decision of the
Supreme Court in the case of Ghanshyam Das Gupta v. Makhan
2
Lal to indicate that the Hon’ble Division Bench restored an appeal
decided on merits in the appellant's absence under Order 41 Rule
17(1) CPC . Therefore, the Learned Appellate Court has rightly allowed
restoration of the application filed by the opposite party. Therefore,
there is no need to set aside the impugned order.
16. Having heard the learned counsels for the respective parties and
having gone through the materials on record, this Court finds that,
admittedly, Title appeal being Title appeal no. 4 of 2012 filed by the
Sashi Bhusan Panda, since deceased, was dismissed for non-
prosecution since the appellant did not take steps in the appeal on
several occasions vide order no. 22 dated 05.01.2013.
17. During his lifetime, Sashi Bhusan Panda filed an application for
restoration under Order 41 Rule 19 of the Civil Procedure Code (in
short CPC). The application was registered as J. Misc. 1 of 2013, but
it was also dismissed for default vide order dated 27.01.2015, as no
th
steps were taken by the appellant. He expired on 9 December, 2014.
When it came to the knowledge of the Opposite Party Nos. 1 to 3,
being the legal heirs and representatives, they filed an application for
restoration under Order IX Rule 9 of the CPC read with section 151 of

2
(2012) 8 SCC 745

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the CPC and section 5 of the Limitation Act, 1963 without indicating
th
particular dates of delay. The application filed on 13 October,2020
was registered as J. Misc. Case No. 10 of 2020.
18. Considering the case of the parties, this court has to be decided on
the following issues involved in the present revisional application as
follows: -
1. Whether the opposite parties have explained and proved the cause
of the delay in filing the application for restoration under Order IX
Rule 9 of the CPC?
2. Whether the opposite parties have suppressed the material facts to
obtain reliefs as prayed for?
19. Upon careful perusal of the application for condonation of delay, this
Court is of the view that the opposite parties have not disclosed the
actual number of days of delay in filing the application for restoration
of the J. Misc. Case No. 1 of 2013. No sufficient explanation was
averred in the application. They also suppressed the material fact
that they were unaware of the proceedings and its dismissal. The
Opposite party clearly specified in paragraph No. 3 that they came to
know about the fate of the Appeal on 11.10.2020 whereas the
petitioner herein drew the attention of this court to the fact that prior
to filing of the applications by the opposite parties, they were very
well aware of the proceeding initiated by the petitioner under Section

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144 of the Cr.P.C. being Misc Case 436 of 2015 on 28.10.2015
against the opposite parties for disturbing the possession of the
petitioner. The opposite parties had duly contested the proceedings
before the Learned Executive Magistrate. However, this information
has been suppressed before the Appellate Court.
20. The Opposite Parties further suppressed the fact that they were very
well aware of the proceeding pending before the Hon’ble High Court at
Calcutta. The Opposite Parties had been arrayed as respondents in a
Writ petition being W.P. 30941 (W) of 2017, filed by the Petitioner,
when the police personnel had not rendered police assistance to him.

21. The Opposite Parties herein had clear knowledge about the dismissal
of the application as far back in the year 2015 itself; however, they
filed the restoration application in the year 2020, suppressing the
actual facts, committing serious fraud upon the Trial Court.
22. It may also be apposite to examine the applicability of the judgment
relied upon by the Petitioner here. The decision in H. Guruswamy &
Ors. v. A. Krishnaiah (Supra) relied upon by learned counsel for the
petitioner, directly bears upon the exercise of discretion under
Section 5 of the Limitation Act and reiterates that concepts such as a
"liberal" or "justice-oriented" approach cannot be employed to
frustrate the substantial law of limitation, and that a court must first
ascertain the bona fides of the explanation offered before bringing the

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merits of the underlying matter into aid. This Court finds the said
decision squarely applicable to the facts of the present case.
23. It is equally well settled that "sufficient cause" within the meaning of
Section 5 of the Limitation Act, 1963 cannot be construed so liberally
as to reward a party guilty of negligence, inaction, or lack of bona
fides. The applicant must satisfy the court that he was prevented by a
cause beyond his control from prosecuting the proceeding within
time; a mechanical or unreasoned condonation defeats the very object
of the law of limitation, as held in Basawaraj & Anr. v. Special
3
Land Acquisition Officer . Tested on this touchstone, the reasoning
in the order impugned falls short of the standard the law requires.
24. The learned Appellate Court has failed to assess these facts while
considering the application filed by the opposite parties. It further
failed to assign any reasons for condoning a delay of almost five years
in filing the restoration application under Order IX Rule 9 of the Code
of Civil Procedure. The Appellate Court ought to have taken all these
facts into consideration; had it done so genuinely and in accordance
with law, the application for condonation of delay would have been
dismissed. While allowing an application for condonation of
inordinate delay, a court must exercise its discretionary power

3
(2013) 14 SCC 81

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sparingly and judiciously, supported by cogent and valid reasons,
which is conspicuously absent in the present case.
25. The opposite party did not approach the Appellate Court with clean
hands and suppressed the fact of knowledge of dismissal, although
they participated in the proceedings initiated against them before the
learned Executive Magistrate and the Hon’ble High Court. In both
proceedings, the petitioner has disclosed the appeal and thereafter
the Judicial Misc. Case. Although they disclosed that they came to
know about the dismissal on 11.10.2020, it is apparently false and
manufactured. Accordingly, on the second issue framed above, this
Court holds that the opposite parties have failed to approach the
court below with clean hands and have suppressed material facts
touching their knowledge of the dismissal of J. Misc. Case No. 1 of
2013, which disentitles them to the discretionary relief of
condonation of delay.
26. In view of the above discussion, no case for condoning the delay of
almost 5 years is made out. Accordingly, the application for
condonation of delay in filing the restoration application is liable to be
dismissed and consequently restoration of Misc. Case 10 of 2020 is
also set aside.

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27. Accordingly, C.O. No. 167 of 2026 is, thus, allowed without order as
to costs. Connected applications, if any, are also, thus, disposed of.
28. Interim order, if any, stands vacated.
29. The order impugned being No. 91 dated 17.11.2025 passed by the
Learned Civil Judge (Senior Division), 2nd Court at Contai, District-
Purba Medinipur in J. Misc. Case No. 10 of 2020, is therefore set
aside.
30. Let a copy of this Judgment be sent to the Learned Court below for
information.
31. All parties will act on the server copies of this Judgment duly
downloaded from the official website of this Hon’ble High Court.
32. Urgent photostat certified copy of this Judgment, if applied for, is to
be given as expeditiously to the parties on compliance of all legal and
necessary formalities.


(Ajay Kumar Gupta, J.)

(P.A.)