In the instant case, the impugned judgment clearly shows, the relevant portion the learned Judge in First Appellate Court did not even come to the finding as to whether the appellant/petitioner was able to establish sufficient ground that prevented him to file the appeal within statutory period of limitation. On the contrary, the application under section 5 was rejected holding, interalia, that there is no merit in the appeal.
Accordingly, this court is of the considered opinion that the lower appellate court has committed material illegality by deciding an appeal on merit while considering an application under Section 5 of the Limitation Act. 19. Substantial question of law formulated in ground no.(II) is thus answered in the affirmative .
Moreover learned Judge in First Appellate court did not even consider the first three grounds set forth by the appellant/petitioner in support of delay in filing the appeal. With regard to ground no.(IV), it is observed by the learned Judge in First Appellate Court that osteo-arthritis is not a curable disease. Secondly, the appellant was found fit in open court and thirdly and mere importantly, even assuming that the appellant was suffering from osteo-arthritis, no fruitful purpose would be served by condoning delay in filing the appeal as the appeal is devoid of any merit .
Court is of the considered view that the observation of this Court made hereinabove should be placed before the Administrative Committee of this Court to consider as to whether under the facts and circumstances, conduct of the concerned learned Judge request any action on the administrative side of this Court.
Let a copy of this judgment be placed before the Administrative Committee forthwith through the Registrar General, High Court, Calcutta. Accordingly the instant appeal is allowed. The impugned judgment and order of dismissal of the application under Section 5 of the Limitation Act is set aside delay in filing the appeal is condoned. The learned District Judge, Hooghly is requested either to dispose of Title Appeal No.132 of 2010 within three months from the date of receipt of the lower court record either by herself or by the learned Additional District Judge cum Special Court who disposed of Title Appeal No.19 of 1994. Under the peculiar facts and circumstances, there shall be no order as to cost.