Calcutta High Court (Appellete Side)
Heir Mina Shaw vs Kanchana Mukhopadhyay on 9 June, 2025
9th June,
2025
(AK)
06
S.A.T 309 of 2019
IA No: CAN 4 of 2025
CAN 5 of 2025
Keshab Shaw (since deceased), substituted by his legal
heir Mina Shaw
Vs.
Kanchana Mukhopadhyay
Mr. Rishad Medora
Ms. Afreen Begum
...for the appellant.
Mr. Chayan Gupta
Mr. Kaushik De
Ms. Mohini Majumdar
Mr. Raghav Munshi
Ms. A. Ghosh
...for the respondent.
In Re: CAN 5 of 2025
1. Heard learned counsel for the parties.
2. The present appeal has been preferred on
September 11, 2019, after a delay of about four
months from the expiry of the statutory limitation
period for filing the same.
3. CAN 5 of 2025, however, has been filed on April 30,
2025, that is, long after the filing of the appeal.
4. The said application is vehemently opposed by
learned counsel for the respondent, primarily on
the ground that even the application for
condonation of delay has been filed beyond the
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period of three years from the appeal being filed,
which is the mandatory limitation period in terms
of Article 137 of the Schedule to the Limitation Act
for residuary applications.
5. Learned counsel places reliance on a coordinate
Bench judgment in the matter of SAT 2737 of 2007
(Uttara Roy and others vs. Sushanta Mondal).
6. In the said judgment, the learned Single Judge,
although proceeding on the premise that the
expression “shall” appearing under Order XLI Rule
3-A of the Code of Civil Procedure is not mandatory
and an application for condonation of delay in
preferring an appeal under the said provision can
be filed even belatedly, after the filing of the second
appeal, nonetheless observed, by placing reliance
on another judgment of this court, that the
application for condonation of delay in preferring an
appeal, either under Section 5 of the Limitation Act
or under Order XLI Rule 3-A of the Code of Civil
Procedure, has to be filed within three years, in
adherence to Article 137 of the Limitation Act.
7. Learned counsel also cites State of M.P. and another
vs. Pradeep Kumar and another reported at (2000) 7
SCC 372 and argues that although an application
for condonation of delay in preferring an appeal can
be filed after the preference of the appeal and the
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deficiency is curable, nothing in the said judgment
relieves the appellant of the liability to file an
application for condonation of delay within the
period of three years from the preference of the
appeal in terms of Article 137 of the Limitation Act.
8. Learned counsel for the respondent also points out
that in terms of the explanation sought to be
furnished in the supplementary affidavit to the
application for condonation of delay, the primary
ground for the delay during the lifetime of the
original appellant, whose heirs have since been
substituted, is that he was a layman in law.
9. Learned counsel submits that since the period of
three years from the preference of the appeal to the
filing of the condonation application expired during
the lifetime of the original appellant, the principle,
that ignorance of law is no ground, is applicable
and the reasons furnished in the supplementary
affidavit cannot be a good ground to condone the
delay.
10. Learned counsel for the appellant controverts the
said arguments and submits that the principles as
laid down in the above judgment cannot be an
impediment to allowing the present application
since sufficient reasons have been shown for the
delay.
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11. Upon hearing learned counsel, we find that certain
cardinal questions arise for consideration in the
present matter.
12. The first such question is whether an application
for condonation of delay in preferring an appeal,
under either Section 96 or Section 100 of the Code
of Civil Procedure, can be construed to be one
under Section 5 of the Limitation Act.
13. The positive answer to that is “no”, since there is a
specific provision governing the field, as stipulated
in Order XLI Rule 3-A of the Code of Civil
Procedure, and it is well-settled that where there is
a specific provision of law, Section 5 of the
Limitation Act cannot be invoked.
14. Hence, we proceed on the premise that the present
application, although captioned to be one under
Section 5 of the Limitation Act, is in effect an
application under Order XLI Rule 3-A of the Code of
Civil Procedure, since it is also equally well-settled
that a wrong caption does not take away the right
of an applicant to get a relief as sought for in the
prayer portion if the court otherwise has the
jurisdiction to grant the same.
15. The next question which arises for consideration is
whether the provision of Article 137 of the Schedule
to the Limitation Act is applicable and, if so, what
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would be the effect of that on the present
application.
16. Upon a considered reading of the judgment of the
learned Single Judge of this court in the matter of
Uttara Roy and others (supra), we are of the view
that learned counsel for the respondent is justified
in arguing that the provisions of Article 137 are
indeed applicable to an application under Order XLI
Rule 3-A of the Code of Civil Procedure.
17. However, we introduce a caveat here.
18. In the same breath that we hold that Article 137 of
the Limitation Act is applicable to such an
application, we cannot but also keep in mind that
the invocation of Section 5 of the Limitation Act to
condone the said delay beyond three years as
stipulated under Article 137 is automatically
incorporated into the principle.
19. The moment it is held that an application or an
appeal is barred by any of the provisions or Articles
of the Limitation Act, simultaneously, the
applicability of Section 5 of the Limitation Act is
also attracted by definition.
20. Proceeding from such perspective, we construe that
the prayer for condonation of the delay in filing the
appeal, as incorporated in the prayer portion of
CAN 5 of 2025 should be read liberally, in
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consonance with the established practice of hearing
applications for condonation of delay, is deemed to
incorporate the inbuilt prayer of condonation of
delay in filing the said application itself as well.
21. Keeping in view such perspective of the matter, we
look into the supplementary affidavit which has
been filed with the leave of court in support of the
said application for condonation of delay.
22. In paragraph no.7 onwards of the supplementary
affidavit, explanation has been sought to be
furnished at length for the delay in preferring the
appeal as well as the application.
23. We find from paragraph no.7 of the supplementary
affidavit that two grounds have been taken therein,
one that the original appellant was a layman in law
and secondly that he was in a financially weak
condition and could not find an advocate in time.
24. Thus, there was sufficient justification, which arose
from the financial insolvency of the appellant as
well, for the delay in preferring the appeal.
25. Insofar as the other argument of the original
appellant being ill-advised in preferring the appeal,
as appearing in paragraph no.8 of the
supplementary affidavit, is concerned, we must be
alive to the fact that maxims of law and principles
evolved over time by legal jurisprudence are not
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edicts set in stone and are not commandments
which cannot be altered at any future point of time.
26. We have to read some amount of compassion into
the wry letters of law.
27. Of course, under normal circumstances, it is indeed
the settled law that a person cannot take shelter
under his or her ignorance of law for preferring an
appeal late, since such a scenario would open a
flood-gate for unscrupulous litigants to delay filing
of appeals and applications.
28. However, it does not automatically mean that in
appropriate circumstances, where some amount of
lenience is justified in view of the financial
circumstances of the litigant and the other
attending situations, the court would be powerless
to condone the delay even if such extenuating
circumstances exist, merely by blindly following the
dictum that ignorance of law cannot be a sufficient
ground for doing so.
29. In fact, our jurisprudence is somewhat peculiar in
the sense that the ignorance of law of a litigant is
not a sufficient defence whereas the ignorance of
law of an advocate is not attended with any such
rigour.
30. There are circumstances where, keeping in view the
backward and marginal sections of the society
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being in a disadvantageous position, we cannot
automatically impute awareness of law to every
litigant be deeming by default that such litigant
must be abreast of all the nuances of law, including
the statutory limitation period.
31. Hence, although we do not defy the established
principle that under normal circumstances
ignorance of law is not a proper defence, we read
some lenience and compassion into the said maxim
in the circumstances of the present case where the
original appellant has met his demise and his heirs,
who have stepped into his shoes and are
conducting the appeal, have come to the court
through legal aid, which itself is a sufficient
indicator that they hail from the marginalized
sections of society.
32. Taking into account such circumstances, we do not
find any reason why the appellants should be shut
out from the corridors of justice merely because
their predecessor-in-interest was not learned in
law.
33. Even otherwise, since the application is construed
to be one under Order XLI Rule 3-A of the Code of
Civil Procedure and we apply Article 137 of the
Limitation Act thereto, we also invoke our powers
under Section 5 of the Limitation Act to condone
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the delay in preferring the application as well as the
appeal, in view of the factual considerations as
indicated above.
34. Accordingly, the delay in filing CAN 5 of 2025 is
condoned.
35. CAN 5 of 2025 is also allowed on contest without
costs in view of the above considerations, thereby
condoning the delay in preferring SAT 309 of 2019.
36. At this juncture, it is quite correctly pointed out by
learned counsel for the respondent that there is a
deficit of Rs.1380/- in deposit of the court fees.
37. Since this is a legal aid matter, we direct the Legal
Aid Services authorities of this court to ensure that
the deficit court fees are put in on behalf of the
appellants within a month from date.
In Re: S.A.T 309 of 2019
38. The appeal is now taken up for hearing under
Order XLI Rule 11 of the Code of Civil Procedure.
39. This second appeal will be heard on the following
substantial questions of law:
(i) Whether, on a composite reading of Section
5(8) and Section 6 of the West Bengal
Premises Tenancy Act, 1997, the share of
municipal taxes payable by the tenant as an
occupier can be construed to be a part of the
10“rent”, for non-payment of which a tenant is
liable to eviction.
(ii) Whether the learned Judge of the First
Appellate Court substantially erred in law in
reversing the decision of the court of first
instance on the premise that the
predecessor-in-interest of the present
substituted appellants was liable to be
evicted for non-payment of rent in view of
having not paid his share of the municipal
taxes.
In Re: CAN 4 of 2025
40. CAN 4 of 2025 is an application for stay of
operation of the impugned judgment and eviction
decree. The affidavit-in-opposition filed to the said
application today be kept on record. A copy thereof
is served on the learned Advocate for the appellant
here and now. The substituted appellants shall file
their affidavit-in-reply to the said opposition within
three weeks from date.
41. There shall be stay of operation of the impugned
judgment and decree as well as the connected
execution case, if any, till July 31, 2025 or until
further order, whichever is earlier.
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42. However, it is made clear that the question of
imposition of occupation charges from the date of
passing of the impugned decree of the First
Appellate Court is kept open for being decided
finally by the learned Judge taking up the stay
application for final hearing.
43. Liberty to the parties to mention the application for
enlistment before the appropriate learned Single
Judge having determination after the expiry of
three weeks from date.
(Sabyasachi Bhattacharyya, J.)
(Uday Kumar, J.)