IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Md. Shabbar Rashidi CO 809 of 2009 Jagannath Maity (Since Deceased) represented by His Heirs and Legal Representative Shrimati Banalata Maity & Ors. VS. Shrimati Biswamayee Golaya (Since Deceased) represented by Her Heirs and Legal Representatives Shrimati Uma Galui & Ors. For the Petitioners : Mr. Rabindranath Mahata, Advocate Mr. Aritra Shankar Ray, Advocate Heard on : August 27, 2026 Judgment on : August 27, 2026 Md. Shabbar Rashidi, J.:- 1. Petitioners are represented. None appears on behalf of the opposite parties despite service. 2. Learned advocate appearing for the petitioners submits that he had rung the learned advocate on record for the opposite parties and in reply, the learned advocate for the opposite parties informed him CO/809/2009 2 that he has no instructions from his clients and as such he is unable to appear in the present revisional application. 3. In such circumstances, the revisional application is taken up for consideration in absence of the opposite parties. 4. The present revisional application is in assailment of an order dated February 21, 2009 passed by learned 1st Civil Judge, Senior Division at Howrah in Misc. Case No. 8 of 1995 arising out of Title Suit No. 85 of 1949. 5. By the impugned order, an application filed on behalf of the present petitioners who were defendant Nos. 7(a), 7(b), 7(c) and 7(e) in the original Title Suit No. 85 of 1949 under Section 5 of the Limitation Act, 1963 was dismissed. 6. It is submitted by learned advocate for the petitioners that it is trite law that an application under Section 5 of the Limitation Act, 1963 should be construed liberally. He further submits that the learned Trial Court was not justified in dismissing the application under Section 5 of the Limitation Act, 1963 filed on behalf of the present petitioners. He further submits that the learned Trial Court did not consider the fraud practiced upon the present petitioners in the original Title Suit. 7. The predecessors-in-interest of Opposite Party Nos. 1 to 10 instituted a Title Suit being Title Suit No. 85 of 1949 as plaintiffs CO/809/2009 3 before the Court of learned Subordinate 1st Court at Howrah praying for partition of the suit. Defendant No. 5 entered appearance and had been contesting the suit for partition. The predecessor-in-interest of the present petitioners was defendant in such suit and on his death, the petitioners were substituted in place of his predecessor. The present petitioners have been contesting the suit by filing written statement therein. 8. On August 6, 1992, the partition suit being T.S. No. 85 of 1949 was fixed for peremptory hearing. On such date, the plaintiffs filed an application for adjournment in the suit on the plea that talks of compromise were going on between the parties. It was further stated by the petitioners that although, the present petitioners were the contesting defendants in the suit but they were not aware of any compromise. On the prayer so made on behalf of the plaintiffs in the suit, the Title Suit was fixed on November 2, 1992 for effecting compromise. It was adjourned on May 23, 1994 and August 2, 1994 for the purpose of filing compromise petition. According to the case made out by the present petitioners, on August 2, 1994 the case was fixed for effecting compromise but prior to that compromise petition was filed on July 29, 1994. The said compromise petition was by and between the plaintiffs and defendant No. 5(a) to 5(d) in the suit. On CO/809/2009 4 the basis of such compromise petition, the suit was decreed on July 29, 1994. It was contended that the present petitioners were not a party to the aforesaid compromise petition. They were informed of such compromise and the suit was decreed behind their back. According to the petitioners, the present petitioners came to know of such decree passed in Title Suit No. 85 of 1949 on August 30, 1995. Thereafter, the present petitioners obtained certified copy of the decree passed in the said suit. According to the petitioners, such decree was fraudulent, collusive and passed without the knowledge and consent of the present petitioners. In such circumstances, the present petitioners filed an application for review under Order 47 Rule 1 read with Section 151 of the Civil Procedure Code. 1908 seeking recall of the order and decree passed in Title Suit No. 85 of 1949. 9. Such application was registered as Misc. Case No. 8 of 1995. Since such Misc. case was filed by the present petitioners beyond the prescribed period of time, the petitioners also filed an application under Section 5 of the Limitation Act seeking condonation of delay. 10. Such application under Section 5 of the Limitation Act, 1963 filed on behalf of the present petitioners was dismissed by the learned Trial Judge by the impugned order. It was held in the impugned order that the present petitioners could not explain the delay occurred in CO/809/2009 5 preferring a review application and, therefore, rejected the prayer of the petitioner under Section 5 of the Limitation Act, 1963. In deciding the application under Section 5 of the Limitation Act, 1963 filed on behalf of the present petitioners, the learned Trial Court held as follows :- “… …. …There is no document in the case record to show in which date actually petitioner came to learn about the illegal compromise by the court. Petitioner during cross- examination admitted that he on 2.8.94 came to know that comprossive. It is claimed by the petitioner No.2 that he was ill, So, he could not take any steps, and on that score he produced Ext-2 From Ext-2 I find that petitioner no.2 was suffering from Jaundice since 8.8.96 to 1.8.95 but the medical certificate does not disclose that doctor advised him to take bed-rest. Medical certificate also does not disclose that petitioner during that period was unable to move. The story as made out by the petitioner that he was ill since 8.8.94 to 1.8.95 is not believable one as petitioner did not assigned any reason as to why he was treated by a doctor of Arambagh Sadar Hospital which is 60 kilometer away from his house. Petitioner also did not assigned any reason as to why he did not get any treatment from any heareat doctor or nearest hospital. He went to get treatmeant by a doctor which is far away from his house. There is no logic behind such type of act of the petitioner no.2 From the medical certificate vide Ext-2 it can be presumed that he may get treatment of Tapan Kumar Maity as an indoor CO/809/2009 6 patient in S.D Hospital from 8.8.94 to 1.8.95 or alternatively he may get treatment from the said doctor of that period by visiting the hos-pital at Arambagh from his house or vice versa. in the First case petitioner has to produce documents as regard his discharge from the said hospital and in the latter case there is no need to produce any such document as he was capable of moving from his house. If I accept the first presumption then Petitioner failed to produce document to that effect and on that score his plead to be turned down and if I accept the letter presumption then petitioner can very well took steps in the case well in time but intentionally he did not do so. That negligence is totally contributable to the petitioner no. himself….” 11. So far the case made out by the present petitioners in their application under Section 5 of the Limitation Act, 1963, it was the contention of the petitioners that the ‘tadbirkar’ of the petitioners i.e. petitioner No. 2 was suffering under jundice and due to his illness, he could not take proper steps to make and file the application for review within the prescribed time. The impugned order shows that the petitioner No. 2 was suffering from jundice from 8th August, 1994 to 1st August, 1995. However, the learned Trial Court had taken into consideration that the medical report filed on behalf of the present petitioners had no advice from the doctor that the petitioner No. 2 was CO/809/2009 7 to undergo bed rest. Another thing that has been taken into consideration by the learned Trial Court is that the petitioner No.2 was treated by Medical Officer at Arambag which is 60 km away from his residence. The learned Trial Court observed that there was no explanation in the petition as to why petitioner No. 2 was not treated by a doctor in the vicinity of the residence of the petitioner. If the petitioner could travel 60 K.Ms for his treatment, there was no impediment in instructing towards making and filing of the application for Review in time. It is on this score, the prayer of the petitioners for condonation of delay in making and filing the application for review was refused by the learned Trial Court. 12. It is trite law that an application for condonation of delay should be construed liberally. As it transpires from the impugned order, the delay in making and filing the application for review, was sought to be explained by the present petitioners by producing a medical document showing his aliment and treatment between August 8, 1994 to August 1, 1995. In my opinion, learned Trial Judge was not justified in questioning the place of treatment or its distance from the residence of petitioner No. 2. There appears no justification as well, as to a bed rest was not advised by the treating doctor in the certificate produced CO/809/2009 8 by the present petitioner in support of his prayer for condonation of delay. 13. Considering the aforesaid facts and circumstances of the case, the impugned order is hereby set aside. Application of the petitioners under Section 5 of the Limitation Act, 1963 stands allowed. Learned Trial Court is requested to consider and dispose of the application for review filed on behalf of the present petitioners as early as possible. 14. CO 809 of 2009 is, accordingly, disposed of. 15. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis upon compliance of all formalities. (Md. Shabbar Rashidi, J.) Dd