Md. Babur Miah and Others vs Tajul Islam and Others

0HIGH COURT OF TRIPURA
AGARTALA

I.A. No.01 of 2025
In RSA No.41 of 2025


1.(a) Md. Babur Miah, (45 years)

1.(b) Md.Tahir Miah, (38 years)

1.(c) Md. Mastu Miah, (33 years)

1.(d) Md. Alamin Miah, (30 years)
All are sons of Late Siddique Miah,

1.(e) Smt. Noor Jahan Begam, (50 years),
W/O- Md. Abu Kalam,
D/O- Late Siddique Miah,

1(f) Smt. Khulshum Begam, (31 years)
D/O. Late Siddique Miah,

1(g) Abu Begam, (32 years)
W/O- Abu Jamal Khan
D/O- Late Siddique Miah
All are daughters of Late Siddique Miah,
After death of Siddique Miah all are legal heirs of Siddique Miah
@ Siddik Miya, as named above.
All are residents of Gajaria, Near BSF Camp,
P.O.-Sarba Dharma Mission, P.S.-AD Nagar, District- West
Tripura, Pin-799003.

2. Md. Sahid Miah, (66 years)
S/O- Late Abdul Khalek,
R/O- Gajaria, Near BSF Camp,
P.O.- Sarba Dharma Mission, P.S.- AD Nagar,
District- West Tripura, Pin-799003
Applicant-appellants…..

VERSUS

1.Tajul Islam,
S/O. Late Abdul Barek Munshi.



2. Master Meheraj Begam,
W/O. Late Khurshed Miah.

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3. Md. Mamum Miah,
S/O/ Late Khurshed Miah.

4. Md. Suman Miah,
S/O. Khurshed Miah.
5. Md. Bacchu Miah,
S/O. Late Khurshed Miah.

All are R/O. Gajaria, Near BSF Camp, P.O.- Sarba Dharma
Mission, P.S.-AD Nagar, District- West Tripura, Pin-799003.

6. Mst. Rahela Begam,
W/O. Md. Abdul Rehman
R/O. Indranagar, Near Masjid, P.S.- East Agartala,
District- West Tripura.
…….Respondents.


For Applicant(s) : Mr. Ratan Datta, Adv,
Mr. Rakesh Debnath, Adv.

For Respondent(s) : Mr. Asim Kumar Deb, Adv.

Date of hearing : 19.06.2026

Date of delivery of
Judgment & Order : 24.06.2026

Whether fit for
reporting : YES


HON’BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This application under Section 5 of the Limitation
Act, 1963 is filed for condoning the delay of 1117 days in
preferring the appeal against the judgment and order dated
19.03.2021 and the consequential decree thereof passed by
Learned District Judge, West Tripura, Agartala, in T.A. No.43 of
2017 arising out of the judgment dated 24.05.2017 delivered
by Learned Civil Judge (Senior Division), Court No.2 in
connection with case No.T.S. No.58 of 2013.

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02. Heard Learned Counsel, Mr. R. Datta appearing on
behalf of the applicant-appellants and also heard Learned
Counsel, Mr. A. K. Deb appearing on behalf of the respondent
Nos.1 to 4 & 6. The said respondents have filed their counter-
affidavit-in-opposition.
03. Taking part in the hearing, Learned Counsel for the
applicant-appellants submitted that the present applicant-
appellants have preferred this appeal against the judgment and
order dated 19.03.2021 and decree dated 31.03.2021 passed
by Learned District Judge, West Tripura, Agartala in connection
with case No.T.A. No.43 of 2017 and in preferring the appeal
there was a delay of 1117 days. It was further submitted that
the impugned judgment was passed on 19.03.2021 and the
decree was signed on 31.03.2021 and the statutory period of
appeal was 90 days, i.e. on or before 17.06.2021 but the same
could not be filed. It was also submitted that the original
defendant in T.S.No.58 of 2013 was seriously ill during the
pendency of the Title Appeal due to his old age and was bed
ridden since 2021 and his family members and survivors were
engaged in taking care of him, as such they could not pursue
anything about the Title Appeal No.43 of 2017 and they were
unaware about the fact of passing judgment in T.A. No.43 of
2017.
It was further submitted that on 19.07.2022 the
original defendant, Siddik Miya died leaving behind the present

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applicants, 1(a) to 1(g) as his survivors as per the survival
certificate and being ignorant of law they could not take any
step and finally, they have preferred the appeal with this
present application for condonation of delay.
03. The contesting respondents have filed their
objection and submitted that this application was not
maintainable.
Further, it was submitted that since the decree-
holders did not file any execution case bearing No.Execution
(T) No.41 of 2022 for execution of the judgment dated
19.01.2021 in T.A. No.43 of 2017 within three years. So, the
applicants have not preferred the present second appeal. By
the objection the contesting O.P.s prayed for dismissal of the
appeal filed. However, at the time of hearing, Learned Counsel
for the applicants, Mr. Datta relied upon one citation of the
Hon’ble Supreme Court of India reported in Inder Singh v.
The State of Madhya Pradesh passed on 21.03.2025 in SPL
(Civil) No.6145 of 2024, wherein in para No.14, Hon’ble the
Apex Court observed as under:
“14. There can be no quarrel on the settled
principle of law that delay cannot be
condoned without sufficient cause, but a
major aspect which has to be kept in mind is
that, if in a particular case, the merits have to
be examined, it should not be scuttled merely
on the basis of limitation.”
He also relied upon another citation reported in
Collector, Land Acquisition, Anantnag & Anr. v. Mst.

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Katiji & Ors. reported in AIR 1987 SC 1353 which was
against the judgment and order dated 14.04.1986 of the
st
Jammu & Kashmir High Court in Civil 1 Appeal No.54 of 1985
wherein in the relevant portion of para No.3, Hon’ble the Apex
Court observed as under:
“3. ………..
“1. *
2. *
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.
” *
Learned Counsel also relied upon another citation of
the Hon’ble Apex Court in In Ram Sumiran & Ors. v. D.D.C.
& Ors. reported in (2020) 9 SCC 636 , wherein Hon’ble the
Apex Court observed as under:
“The only ground on which the High Court has
dismissed the writ petition is that it has abated as
a whole against Respondents 4 and 5 since it

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abated against Respondent 5 on account of the
legal representatives of Respondent 5 not having
been brought on record within a period of 90 days
after the death of Respondent 5 which occurred on
November 21, 1976. It is true that no steps were
taken by the appellants for bringing the legal
representatives of the deceased Respondent 5 on
record for about 6 years even though according to
Respondent 4 the appellants knew about the death
of Respondent 5. But merely because no
application was made by the appellants for
bringing the legal representatives of the deceased
Respondent 5 on record we do not think that in the
circumstances of the present case that would be a
valid ground for refusing to grant the application of
the appellants for setting aside the abatement and
bringing the legal representatives of the deceased
Respondent 5 on record because the appellants are
admittedly from the rural area and in a country like
ours where there is so much poverty, ignorance
and illiteracy, it would not be fair to presume that
everyone knows that on death of a respondent, the
legal representatives have to be brought on record
within a certain time. The ends of justice require
that the application for bringing the legal
representatives of the deceased Respondent 5
should have been granted. We accordingly allow
the appeal, set aside the order of the High Court
and direct that the abatement, if any, shall be set
aside and the legal representatives of deceased
Respondent 5 shall be brought on record and the
writ petition shall be remanded to the High Court
for disposal according to law. We may make it
clear that in making this order we must not be
presumed to have expressed any opinion on the
merits of the controversy raised in the writ
petition. It will be for the High Court to decide the
writ petition according to law. We would request
the High Court to dispose of the writ petition at a
very early date and as far as possible, before the
end of February 1985. The ex parte order of stay
made by us will stand vacated.”
Referring the same Learned Counsel for the
applicant-petitioners submitted that the present petition is
supported by the aforesaid judgments.
On the other hand, Learned Counsel for the
respondents relied upon the judgment in Maya Bhowmik v.
Jitendra Kumar Shil reported in (2016) 2 TLR 878 , wherein
in para No.11, this High Court observed as under:

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“11. It is a settled position of law that the
expression “sufficient cause” in Section 5 must
receive liberal construction so as to advance
substantive justice where no gross negligence or
deliberate inaction or lack of bona fide is imputable
to a party seeking condonation of the delay. The
period of delay does not matter, but what matters
is the reason for which the delay is caused.”
Referring the same, Learn Counsel drawn the
attention of the Court that “sufficient cause” has not been
explained by the petitioners/applicants in the application for
which the same needs to be dismissed.
04. Heard both the parties at length and perused the
application for condonation of delay. It is the settled position of
law that in a case of this nature, it is the duty of the applicant
to explain everyday’s delay. Here in the case at hand the
st
judgment of the 1 Appellate Court was passed on 19.03.2021
in T.A. No.43 of 2017 and the same was decreed on
31.03.2021. The present applicants have asserted that the
original defendant was suffering from illness and was bed
ridden and his legal heirs were engaged in taking care of him
and finally, on 19.07.2022 said Siddik Miya died leaving behind
the present petitioners as successors and for ignorance of law
they could not prefer the appeal within time. Except these
grounds no other materials could be produced by the aforesaid
applicants. Eeven no documentary evidence was adduced by
the present applicants in support of illness of said Siddik Miya
i.e. the original defendant of T.S. 58 of 2013. Furthermore, in
the application for condonation of delay the present applicants
have not explained the day to day delay in filing the application

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save and except some omnibus statements. The citations
referred by the applicants in support of their application does
not help this Court at this stage to condone the delay as
prayed for and furthermore, at this stage, I do not find any
scope to consider the merit of the appeal as raised by Learned
Counsel for the applicant at the time of hearing.
However, in Thirunagalingam v. Lingeswaran &
Anr. reported in 2025 SCC OnLine SC 1093 , at para Nos.31
and 32, Hon’ble the Supreme Court observed as under:
“31. It is a well-settled law that while considering
the plea for condonation of delay, the first and
foremost duty of the court is to first ascertain the
bona fides of the explanation offered by the party
seeking condonation rather than starting with the
merits of the main matter. Only when sufficient
cause or reasons given for the delay by the litigant
and the opposition of the other side is equally
balanced or stand on equal footing, the court may
consider the merits of the main matter for the
purpose of condoning the delay.
32. Further, this Court has repeatedly emphasised
in several cases that delay should not be condoned
merely as an act of generosity. The pursuit of
substantial justice must not come at the cost of
causing prejudice to the opposing party. In the
present case, the respondents/defendants have
failed to demonstrate reasonable grounds of delay
in pursuing the matter, and this crucial
requirement for condoning the delay remains
unmet.”
(emphasis supplied)
In H. Guruswamy & Ors. v. A. Krishnaiah since
deceased by Lrs. reported in 2025 SCC OnLine SC 54 , at
para Nos.16 and 17, Hon’ble the Supreme Court observed as
under:
“16. The length of the delay is definitely a relevant
matter which the court must take into
consideration while considering whether the delay
should be condoned or not. From the tenor of the
approach of the respondents herein, it appears

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that they want to fix their own period of limitation
for the purpose of instituting the proceedings for
which law has prescribed a period of limitation.
Once it is held that a party has lost his right to
have the matter considered on merits because of
his own inaction for a long, it cannot be presumed
to be non-deliberate delay and in such
circumstances of the case, he cannot be heard to
plead that the substantial justice deserves to be
preferred as against the technical considerations.
While considering the plea for condonation of
delay, the court must not start with the merits of
the main matter. The court owes a duty to first
ascertain the bona fides of the explanation offered
by the party seeking condonation. It is only if the
sufficient cause assigned by the litigant and the
opposition of the other side is equally balanced
that the court may bring into aid the merits of the
matter for the purpose of condoning the delay.
17. We are of the view that the question of
limitation is not merely a technical consideration.
The rules of limitation are based on the principles
of sound public policy and principles of equity. No
court should keep the ‘Sword of Damocles’ hanging
over the head of a litigant for an indefinite period
of time.”
05. It is the settled position that limitation is based on
public policy and the principle of equity. The power under
Section 5 of the Limitation Act, 1963 is a discretionary power
and it may not be exercised if the delay is attributed to the
elements of negligence, carelessness and lack of due diligence
on the part of the appellant/applicant.
Here in the case at hand, after hearing both the
sides, it appears to us that there was no due diligence on the
part of applicants in filing the application and furthermore, on
considering the materials on record, I am not satisfied with the
explanations offered by the present applicant-appellants for
condoning delay of 1117 days in preferring the connected
appeal. Accordingly, the application for condonation of delay
filed by the applicants stand rejected being devoid of merit.

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Consequently, the appeal filed also stands
dismissed.
Send down the record(s), if any, to the Learned
Trial Court along with a copy of this order.
With these observation, this present application
stands disposed of.
Pending application(s), if any, also stands disposed
of.
JUDGE







Digitally signed by PURNITA DEB
Date: 2026.07.01 16:27:23
+05'30'
PURNITA DEB
Purnita