D Lavanya Sundari v. Kamal Kumar

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/19/2024 D. Lavanya Sundari Vs.

Kamal Kumar Ms. D.Lavanya Sundari ... petitioner in person Mr. KMB Jayapal ... for the respondent June 20, 2024 [SR] Item No.2 The present revisional application under Article 227 of the Constitution has been preferred against an order whereby the learned District Judge, vide order dated April 23, 2024 passed in Misc. Judl. Case No.16 of 2023, dismissed the appeal of the petitioner consequentially, upon first rejecting the petitioner's application for condonation of delay of about 172 days. The suit from which the said appeal arose was filed for eviction and recovery of rents by the opposite party against the petitioner.

In said suit, an application was filed by the landlord/opposite party under Section 14 of the Andaman and Nicobar Islands Rent Control Regulation, 1964. By its order, the learned Trial Judge allowed the application of the opposite party/landlord under Section 14(2) of the 1964 Regulation, thereby directing the defendant/petitioner to pay a sum of Rs.6500/- per month to the plaintiff as rent within the 15th day of each succeeding month starting from October, 2022 as current rent and file a receipt accordingly month by month till the disposal of the suit. It is contended by learned counsel appearing for the opposite party at the outset that the present revision is not maintainable

since, in terms of the judgment of the Supreme Court in the matter of Shyam Sundar Sarma vs. Pannalal Jaiswal and others reported at (2005) 1 SCC 436 as well as the Division Bench of this Court in the matter of Md.Ali Sardar and others vs. V. Hossain Ali Monda reported at AIR 2012 Calcutta 171, a second appeal lies, as it is deemed that consequent to the rejection of the application under Section 5 of the Limitation Act, the appeal itself is also dismissed.

Further, learned counsel points out that a second appeal is maintainable under Section 27 of the 1964 Regulation against any order passed in appeal under Section 26.

Upon hearing learned counsel for the respondent as well as the petitioner, appearing in person with the leave of the Court, this court agrees with the objection taken by the opposite party to the effect that a second appeal and not a revisional application is maintainable against the impugned order.

However, taking into consideration the fact that the petitioner is a lay person having no knowledge of the law, the fact that the petitioner erroneously filed a revisional application instead of second appeal cannot be held against her.

Moreover, bona fide proceeding in wrong forum under misconception of law has been given some leeway under Section 14 of the Limitation Act, although otherwise ignorance of law is not a ground for condonation of delay.

Taking a holistic approach of the matter, the ends of justice would demand that a limited protection is given to the petitioner till she can prefer a second appeal against the impugned order.

That apart, the petitioner submits that despite having made endeavour, she was not given any legal assistance by the District Legal Services Authority, Port Blair.

Accordingly, CO/19/2024 is disposed of by granting the petitioner liberty to prefer a second appeal against the impugned order dated April 23, 2024.

The petitioner is accordingly permitted to take back the certified copy of the impugned order by furnishing a duly certified photocopy of the same.

It is made clear that the period spent by the petitioner in pursuing the present remedy would be construed as the petitioner having bona fide proceeded before a wrong forum within the contemplation of Section 14 of the Limitation Act in the second appeal, as and when filed by her.

Furthermore, the Chairman and the Secretary of the District Legal Services Authority, Port Blair are directed to immediately ensure that adequate legal assistance is given to the petitioner at the earliest.

The petitioner shall approach the Chairman of the District Legal Services Authority i.e. the learned District Judge, Port Blair and communicate this order for the purpose of compliance at the earliest.

Moreover, the office shall forward a copy of this order to the learned District Judge also to ensure the compliance of the same immediately.

In order to grant a limited protection to the petitioner, more so, since she is a lay person, as justice must appear to have been done and not only be done, there shall be a stay of all further proceedings in Other Suit No.67 of 2021 till July 15, 2024 in order

to enable the petitioner to move a second appeal, and if she so chooses, to file an interlocutory application praying for interim relief in connection with the same in the meantime.

It is, however, made clear that this protection is being granted merely on ad hoc basis without entering into the prima facie case of the petitioner in view of the considerations as enumerated as above, and it will be open to the court taking up the second appeal for admission or otherwise, to return its own findings independently and in accordance with law.

( Sabyasachi Bhattacharyya, J. )