Sunday, 31 March 2019

Whether oral prayer for condonation of delay is maintainable?

It is well settled that an oral prayer for condonation of
delay can also be entertained provided ground therefor is made out
in the petition and accordingly I do not find any merit in the
submission that in absence of any formal prayer, the oral prayer
for condonation of delay cannot be entertained. However, as
rightly pointed out on behalf of the Executor, the court has to be
satisfied that there is sufficient cause for condoning such delay
and the court has to be satisfied with the explanations offered in

the petition. In an application for restoration, the applicant is
required to furnish reasons which have to be sufficient to sustain
a plea that the applicant is entitled to restoration of the matter
and he needs to offer an explanation for the period of delay.

IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
GA NO. 3070 OF 2018
PLA NO. 123 OF 2013

IN THE GOODS OF:
KRISHNA CHANDRA SENGUPTA (DECEASED)

BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 15th November 2018.
Citation: AIR 2019(NOC) 66 Cal

The petitioner filed an application for revocation of the
grant of probate being GA No. 2565 of 2015 in which directions for
affidavits were given and consequent thereupon the parties
exchanged their affidavits. However, during the pendency of the
said application, Mr. Tridib Kumar Sarkar, advocate appointed by
the applicant, died and the factum of death, according to the
petitioner, was not known to the petitioner until 30th July 2018
when the petitioner was informed of such death by one nephew of
the testatrix from London. The learned advocate representing the
applicant has also produced a copy of an affidavit in reply
affirmed within time but could not be filed due to the death of
Sri Sarkar. The original affidavit in reply is produced before
this Court.
The probate was granted on 24th December 2014 and the
application for revocation was filed sometime in August 2015 when

admittedly the administration of the Estate was not completed. It
is not in dispute that the applicant had engaged an advocate to
conduct his matter and it was reasonably expected that the said
advocate would take all steps to protect the interest of his
client. Mr. Sarkar died on 19th December 2015. The petitioner
wanted this court to believe that he was not aware of the death
until 30th July this year.
The diligence of the petitioner to conduct the matter is
being questioned by the Executor. It is submitted on behalf of
the Executor that the applicant was not interested to proceed with
the matter and is unable to demonstrate the steps he had taken
subsequent to the death of his advocate. It is submitted that it
is expected of a litigant to follow up his matter with his
advocate and the petitioner having failed to explain the delay for
all this years is not entitled to restoration of the application
for revocation. It is further submitted that there is no formal
prayer for condonation of delay.
It is well settled that an oral prayer for condonation of
delay can also be entertained provided ground therefor is made out
in the petition and accordingly I do not find any merit in the
submission that in absence of any formal prayer, the oral prayer
for condonation of delay cannot be entertained. However, as
rightly pointed out on behalf of the Executor, the court has to be
satisfied that there is sufficient cause for condoning such delay
and the court has to be satisfied with the explanations offered in

the petition. In an application for restoration, the applicant is
required to furnish reasons which have to be sufficient to sustain
a plea that the applicant is entitled to restoration of the matter
and he needs to offer an explanation for the period of delay. In
paragraph 5 of the petition, the petitioner has referred to his
past conduct as well as has stated that he is not a resident of
Kolkata and was suffering from various ailments. He has disclosed
few documents which are between December 2015 and March 2018. The
prescription of March 2018 is not of much relevance as such
prescription would not establish that the nature of the disease
disclosed would prevent the petitioner to visit Kolkata for the
purpose of conducting his matter. The petitioner has not offered
any explanation as to the attempts made by him after December 2015
till October 2018 when this application was affirmed and as to
what steps he had taken in the matter and whether he made any
enquiry for all these years from his erstwhile advocate. A man
with ordinary diligence could have easily ascertained that his
advocate is dead and had he been diligent with the matter, he
would have immediately rushed to Kolkata and take appropriate
steps in the matter. Since the court is required to be satisfied
that sufficient cause is shown as a condition precedent for
invoking its discretion under Section 5 of the Limitation Act, in
absence of sufficient explanation offered, the court would not be
justified to invoke such discretion. It is for the petitioner to
establish that sufficient cause exists for which the court can

exercise its discretion. In absence of satisfactory explanation
offered for not being able to approach this court immediately
after the death of Sri Tridib Kumar Sarkar, advocate, this court
is unable to accede to the prayer of the petitioner for
restoration.
GA No. 3070 of 2018 stands dismissed. However, there shall
be no order as to costs.
(SOUMEN SEN, J.)
S. Kumar
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