Item- ML- 88. sg 01-09-2026 Ct. 6 CO 2348 of 2026 Swapna Saha Chowdhury & Ors. Versus Dhiman Bhattacharya Mr. Kishore Mukherjee …for the petitioners Mr. Tanmoy Mukherjee Mr. Debdipto Banerjee Mr. Soumen Banerjee …for the respondent This application under Article 227 of the Constitution of India is at the instance of the plaintiffs and is directed against the judgment and order dated 15th May, 2026 passed by the learned Additional District Judge, Fast Track Court No.1, Barasat, North 24 Parganas in Misc. Appeal No. 45 of 2025. The petitioners filed a suit for declaration that the deed of conveyance dated 25th January, 2005 is only a mortgage against loan and such transaction is a loan in substance and not an out and out sale and for mandatory and permanent injunction. The opposite party entered appearance in the said suit and filed written statement by setting up a counter claim for recovery of possession. The title suit at the instance of the petitioners stood dismissed for default on 31st January, 2017 and the counter claim of the opposite party was decreed by an ex parte judgment and decree dated 27th January, 2022. The petitioners filed an application under Order IX Rule 13 of the Code of Civil Procedure praying for setting aside the ex parte judgment and decree dated 27th January, 2022. Since there was a delay in filing the misc. case, the same was accompanied by an application under Section 5 of 2 the Limitation Act. The learned Trial Judge by a judgment and order dated 1st March, 2025 dismissed the application under Section 5 of the Limitation Act filed in the misc. case and accordingly, the misc. case was disposed of. Being aggrieved by such order, the petitioners preferred a Misc. Appeal being No. 45 of 2025 which also stood dismissed by a judgment and order dated 15th May, 2026. Mr. Kishore Mukhjeree, learned advocate appearing for the petitioners submits that the learned trial judge, without considering the medical documents filed by the petitioners, more particularly, the exhibit 10, rejected the application under Section 5 of the Limitation Act. He submits that the learned trial judge rejected the application under Section 5 of the Limitation Act on the ground that the day to day delay has not been explained. He further submits that the learned trial judge, after taking into consideration the past conduct of the petitioners, rejected the misc. case under Order IX Rule 13 of the Code of Civil Procedure. In support of his contention that the past conduct cannot be a ground for rejecting an application under Order IX Rule 13 of the Code of Civil Procedure, he placed reliance upon a decision of the Hon’ble Supreme Court in the case of G.P. Srivastava vs. Shri R.K. Raizada & Ors. reported in 2000 (3) SCC 54. He further submits that an application under Section 5 of the Limitation Act is to be construed liberally and in support of scuh contention, he places reliance upon the decision of a Hon’ble Supreme Court in the case of 3 Raheem Saha & Anr. Vs. Govind Singh & Ors. reported in (2023) 18 SCC 764. Per contra, Mr. Tamnoy Mukherjee, learned advocate appearing for the opposite party, submits that the learned trial judge as well as the learned judge of the appellate court, after considering the materials on record, arrived at a specific finding that the petitioners were not diligent in defending the counter claim. He submits that the medial documents submitted by the petitioners were considered and found the same as not relevant pieces of evidence justifying the delay in filing the misc. case as well for not taking steps in the counter claim. In support of his contention that a long delay cannot be condoned, he places reliance upon the decision of the Hon’ble Supreme Court in the case of Shivamma vs. Karnataka Housing Board & Ors. reported in 2025 SCC OnLine SC 1969. He further submits that the entire period starting from the date of passing of the ex parte decree till the date of hearing of the misc. case has to be explained and not the period after the expiry of the period of limitation. Heard the learned advocates for the respective parties and perused the materials on record. The learned trial judge, after considering the materials on record, recorded a specific finding that the petitioner was present on 13th September, 2021 and on that date, the next date was fixed on 27th September, 2021. The learned trial judge specifically recorded that on 27th September, 2021, the petitioner failed to take any steps and the next date of hearing was fixed on 22nd November, 2021 4 and the petitioner also failed to take any steps on that date. The learned trial judge also recorded that the ex-parte decree was passed on 27th January, 2022. The learned trial judge recoded that no document has been produced to explain the delay of 151 days in filing the misc. case. The learned judge of the appellate court took note of the medical documents produced by the petitioner dated 25th January, 2022 wherein doctor advised the petitioner to take 10 days bed rest. The learned judge of the appellate court rightly recorded that as per the said medial certificate, the petitioner became fit on 5th February, 2022 and no subsequent medical document was filed by the petitioner in support of her illness in order to substantiate the delay in preferring the misc. case. The learned judge of the appellate court further recorded that there were two other appellants apart from the petitioner no.1 who also had the knowledge about the suit and the learned judge of the appellate court was justified in drawing an adverse inference against the other petitioners for not taking any step to contact the learned counsel. The learned judge of the appellate court recorded a factual finding that the delay of 117 days has not been specifically explained by the petitioner. At this stage, it would be relevant to take note of the evidence of the PW-2 namely, Swapna Saha Chowdhury, in the misc. case no. 27 of 2022 wherein she has admitted at the time of her cross-examination that she was doing well around 25th January, 2022. In view of such admission in cross- examination, the medical document dated 25th January, 2022 becomes insignificant. The petitioner no.1 also admitted in 5 her evidence that from September 2021 to January 2022 her son was present in Kolkata. Thus, by reading the evidence as a whole, this Court is of the considered view that the petitioners failed to make out any sufficient cause for not contesting the counter claim as well as for not filing the misc. case within the prescribed period of limitation. It is well-settled that concurrent finding of fact cannot be interfered with under Article 227 of the Constitution of India unless there is perversity. The learned advocate appearing for the petitioners could not point out any perversity in the findings of the learned trial judge as well as the appellate court. There is no quarrel to the proposition of the law laid down by the Hon’ble Supreme Court in Raheem Saha (supra) that an application under Section 5 of the Limitation Act should be considered pragmatically and liberally and it is well-settled that every day’s delay must not be explained. However, the ground taken in the application under Section 5 of the limitation Act in the case on hand is the illness which the petitioners failed to prove specifically. Thus the decision in the case of Raheem Saha (supra) cannot give to the aid of the petitioners. It is well settled that past conduct cannot be taken into consideration. Since this court has already held that the petitioners failed to prove specifically the delay in filing the misc. case, even if the past conducts is eschewed, the misc. case under Order IX Rule 13 of the Code of Civil Procedure was rightly rejected. It is now well settled that for the purpose of 6 condonation of delay in terms of section 5 of the Limitation Act the delay has to be explained by establishing the existence of sufficient cause for the entirety of the period from when the limitation starts till the actual date of filing. In other words, if the period of limitation is 90 days and the appeal is filed after 100 days, explanation has to be given for the entire 100 days. This Court finds that the learned judge of the appellate court has held that the medical documents filed by the petitioners failed to show that during the limitation period, she was ill and bed ridden. This Court accordingly holds that the impugned order does not suffer from perversity warranting interference under Article 227 of the Constitution of India. With the above observation, this civil revisional application stands dismissed. However, there shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Hiranmay Bhattacharyya, J.)