Badloo Ram vs Mishree Lal @ Ram Tej And 2 Ors.
2013 Latest Caselaw 6028 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- SECOND APPEAL DEFECTIVE No. - 50 of 2008
 

 
Appellant :- Badloo Ram
 
Respondent :- Mishree Lal @ Ram Tej And 2 Ors.
 
Counsel for Appellant :- D.C.Teiari,Pt. D.R. Shukla
 
Counsel for Respondent :- Ashish Mishra
 

 
Hon'ble Ritu Raj Awasthi,J.

Heard Mr. D.R. Shukla, learned counsel for appellant as well as Mr. Ashish Mishra, learned counsel for respondents and perused the record.

This second appeal has been filed under Section 100 Code of Civil Procedure (for short 'the Code') against the judgment and order dated 29.2.1996 passed in Civil Misc. Appeal No. 62 of 1995 (Badloo Ram Vs. Mishree Lal and Others) arising out of the judgment and decree dated 09.01.1995 passed in Regular Suit No. 553 of 1991 (Mishree Lal and Others Vs. Badloo Ram) whereby the suit filed by the respondents-plaintiffs has been decreed in their favour and the first appeal preferred against the said judgment has been dismissed. 

The appeal has been filed with reported delay of 11 years, 07 months and 07 days as on 08.02.2008.

Objection in the form of counter affidavit has been filed to the affidavit filed in support of application for condonation of delay filed under Section 5 of Indian Limitation Act.

Mr. D.R. Shukla, learned counsel for appellant submits that the suit for specific performance filed by plaintiffs was decreed vide judgment and decree dated 09.01.1995. The appellant being defendant in the suit, feeling aggrieved, had filed the first appeal (Civil Misc. Appeal No. 62 of 1995). The first appellate Court after hearing the parties had dismissed the appeal and affirmed the judgment of the Trial Court.

It is submitted that after the judgment of the appellate Court the appellant had fallen sick as he had suffered attack of paralysis. The appellant was in continuous treatment of Dr. Tribhuwan Pathak who has certified that the appellant was in his treatment during the period 29.2.1996 to 30.6.2006.

Submission is that the appellant due to illness could not approach the Court in time to file the instant appeal.

It is further submitted that after recovery of health the deponent in the month of June, 2006 had approached the learned Court below to obtain certified copy of the judgment and decree dated 09.01.1995 as well as judgment and order dated 29.2.1996 and thereafter he had again suffered paralysis attack and could not file the appeal. It is also submitted that it was only in the month of January, 2007 that he had got the second appeal prepared by his counsel which was ultimately filed on 08.02.2008.

Mr. D.R. Shukla, learned counsel for appellant emphasized that the medical certificate submitted along with affidavit filed in support of application for condonation of delay is a genuine document and in case the other side has any doubt about the authenticity of the same then the Doctor who has issued the said certificate may be summoned to appear before the Court in order to ascertain the authenticity of the said document, in this regard he has also moved an application before this Court.

Submission is that the appellant due to his ill health could not approach the Court in time and the delay in filing the appeal is due to bona fide reasons and deserves to be condoned.

Mr. D.R. Shukla, learned counsel for appellant also submits that he has filed a better affidavit in order to explain the delay (without any permission from the Court). By way of better affidavit, the appellant wants to explain that he was a victim of fraud played on him by his relatives due to which he was made to believe that proper pairvi in his case is being done during the period of his illness and, therefore, he could not approach the Court under bona fide belief that in case there is any requirement of filing an appeal, he would be duly informed by the person doing pairvi on his behalf.

It is submitted that one Mr. Hira Lal (witness to deed) who was hand in glove with the respondents had made the appellant believed that he is watching the appellant's interest and he need not worry. He had not option but to believe Mr. Hira Lal as he was seriously ill.

In support of his submissions, Mr. D.R. Shukla, learned counsel for appellant relies on the following judgments:

(i) Board of Control for Cricket in India and Another Vs. Netaji Cricket Club and Others; (2005) 4 SCC 741, particularly paragraphs 89, 90 and 91.

(ii) State of Jharkhand & Ors. Vs. Ashok Kumar Chokhani & Ors.; 2009 AIR SCW 1537, particularly paragraph 3.

(ii) N. Balakrishnan Vs. M. Krishnamurthy; AIR 1998 SC 3222, particularly paragraph 13.

Mr. Ashish Mishra, learned counsel for respondents, on the other hand, submitted that the plea of illness taken by the appellant in the affidavit filed support of his application for condonation of delay is totally false and frivolous as during the period 1996 to 2006 when the appellant claims to be seriously ill due to paralysis attack he was blessed with four children. This fact has not been denied by the appellant, although specifically averred in the counter affidavit of the respondents.

It is submitted that the medical certificate annexed with the affidavit filed in support of application for condonation of delay is manufactured and concocted document which does not even bear the designation of the Medical Officer who is alleged to have issued the said certificate.

Mr. Ashish Mishra, learned counsel for respondents submitted that the appellant is educated upto class VIII. He understands the legal implications and knows-fully-well the consequences of not approaching the Court in time. It was before the Trial Court as well as before the appellate Court that the appellant had taken the plea of his ignorance and illiteracy and had said that he did not understand the implications of registered agreement to sale. The Trial Court as well as the appellate Court have rejected this plea of the appellant, meaning thereby that the appellant fully understands the implications of not approaching the Court in time and the consequences of inordinate delay in filing the instant appeal.

Mr. Ashish Mishra, learned counsel for respondents also submitted that even as per own averment of the appellant as given in the affidavit filed in support of application for condonation of delay, the appellant had approached his counsel for filing of appeal and had got the appeal prepared in the month of January, 2007, however, the said appeal was filed on 08.02.2008 i.e. after more than 13 months. It is submitted that the delay in filing the appeal is to be explained on day to day basis. The appellant has not given any reason for not filing the appeal, although it was prepared in January, 2007.

In support of his submissions, Mr. Ashish Mishra, learned counsel for respondents relies on the judgment of this Court in the case of Sita Ram Vs. Sri Dhar and Others; [2006 (24) LCD 1239].

I have considered the submissions made by the parties' counsel and gone through the records.

There is no denying the fact that the appeal has been filed with reported delay of more than 11 years, 07 months and odd as on the date of filing of appeal i.e. 08.02.2008. The second appeal has been filed by the appellant-defendant who has lost in both the Courts below.

The suit for specific performance filed by respondents-plaintiffs was decreed vide judgment and decree dated 09.01.1995. The first appeal i.e. Civil Misc. Appeal No. 62 of 1995 preferred by the present appellant was dismissed vide impugned judgment and order dated 29.2.1996.

It is to be noted that the plaintiff thereafter had filed execution case on 10.2.1998. The appellant had put in appearance in the said case and contested the said case. The appearance was put by the appellant in the said case in the year 2006.

As per the appellant himself he had been continuously under medical treatment during the period 29.2.1996 to 30.6.2006. It appears that after 30.6.2006, the appellant had become fit enough to contest the aforesaid execution case and had put in appearance in the said case to contest the same.

Learned counsel for appellant has failed to explain as to why the appellant did not approach this Court for filing the second appeal immediately after June, 2006. It is hard to believe that the appellant on the one hand was fit enough to contest the execution case by putting his appearance there but on the other hand was not fit enough to file the instant appeal in the year 2006.

As per own averments of the appellant, as given in paragraphs 6 & 7 to affidavit filed in support of application for condonation of delay, he had contacted his Advocate, namely, Mr. D.C. Tiwari with relevant documents and on his advice had got the second appeal prepared in the last week of January, 2007.

It is to be noted that the appeal was ultimately filed on 08.02.2008. There is no explanation as to why the appeal was not filed after it was prepared in January, 2007. The delay in approaching the Court is required to be explained on day to day basis.

The Court time and again has held that the Court shall be conscious in condoning the delay, it shall be condoned only when there are sufficient cause or proper reason to condone the delay, it cannot be condoned in a cursory manner.

In the case in hand, the appellant has approached the Court after more than 11 years and 07 months.

So far as the contention of learned counsel for appellant that the appellant is a victim of fraud played by his relative who had made him believe that he is looking after his interest and doing necessary pairvi in his case is concerned, suffice is to mention that the first appeal filed by the appellant was dismissed on 29.2.1996. The appellant had fallen sick thereafter, however, the appellant had put in appearance in execution case in July, 2006, but he did not approach this Court and file the instant appeal at that time, as such, it is hard to believe that the appellant who is educated upto class VIII was persuaded by anyone not to file the appeal in time.

So far as the judgments cited by learned counsel for appellant are concerned, in the case of Board of Control for Cricket in India and Another (supra), the Apex Court had the occasion to consider the meaning of 'sufficient reason'. It has been held by the Apex Court that 'sufficient reason' would dependent upon the facts and circumstances of the case. The word 'sufficient reason' covers even the misconception of fact or law by the Court or even an Advocate.

In the present case, I do not find any sufficient reason to condone the delay, as such, I am of the view that the judgment cited by the learned counsel for appellant is of no help to him.

In the case of State of Jharkhand & Ors. (supra), the Apex Court has held that while considering the application for condonation of delay the Court shall not go into the merits of the case.

There is no dispute to the said proposition of law.

In the case of N. Balakrishnan (supra), the Apex Court has observed that the Court should adopt lenient view while considering the condonation of delay. The effort should be to provide an opportunity to the persons concerned to contest the case on merit. It has been observed by the Apex Court that if the explanation does not smack of mala fides or does not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. The observations made in this regard in paragraph 13 on reproduction read as under:

"13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or does not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning the delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss"

In the present case, the appeal has been filed beyond the period of 11 years 07 months and 07 days. Learned counsel for appellant has failed to give any sufficient cause to condone the delay.

In case the delay is condoned, it will amount to misuse of process of law, as such, I am of the view that it is not a fit case where the delay shall be condoned.

Learned counsel for respondents has cited the judgment of this Court in the case of Sita Ram (supra) wherein the Court has observed that it is high time that a changed perspective and attitude is adopted particularly when the Courts are already overburdened with the cases and the time of the Court is unnecessary wasted in dealing with such cases which have been filed with inordinate delay. The relevant paragraph 6 of the judgment on reproduction reads as under:

"6. Previously Courts did show lenience and latitude in dealing with applications for adjournments and condonation of delay. It is high time a changed perspective and attitude is adopted, since the Courts are already overburdened with cases resulting in inordinate delay in disposal of cases. Those days of condonation of dalliance and delay should now be over and in cases where no sufficient and proper reason is assigned for delay, the Court must adopt the stern attitude and refuse relief. That will also help in transmitting a message that the Court will no more be indulgent and parties beware."

Considering the entire facts and circumstances, I am of the considered view that it is not a fit case where the delay in filing the appeal is to be condoned.

The second appeal as such is dismissed on the ground of inordinate delay.

[Justice Ritu Raj Awasthi]

Order Date :- 24.9.2013

Santosh/-