Pati Rakhan & Anr. vs Smt. Chandrani Devi
2021 Latest Caselaw 1922 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18/Reserved                                                  AFR
 

 
Case :- SECOND APPEAL No. - 144 of 2017
 

 
Appellant :- Pati Rakhan & Anr.
 
Respondent :- Smt. Chandrani Devi
 
Counsel for Appellant :- Virendra Mishra
 
Counsel for Respondent :- Paltoo Ram Gupta
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Virendra Mishra, learned counsel for the appellants and Shri Paltoo Ram Gupta, learned counsel for the respondents.

2. The instant Second Appeal has been filed against the judgment and decree dated 07.12.2016 passed by the Additional District Judge, Court no.9, Sitapur in Misc. Civil Case No.08 of 2014; Pati Rakhan Versus Smt. Chandrani by means of which the application for condonation of delay in filing appeal has been rejected and the judgment and decree dated 18.07.1987 passed by the learned Additional Civil Judge, Sitapur in R.S.No.40 of 1983;Smt.Chandrani Devi Versus Raj Rani and others.

3. The brief facts of the case for adjudication of the present Second Appeal, as borne out from the pleadings, are that one Brij Mohan had only two daughters, namely, Raj Rani wife of Anirudh Prasad and Ram Lali wife of Swami Dayal @ Dhondhey. Both the daughters had half share each in the property of Brij Mohan after his death. The respondent has claimed half of the property on the basis of sale deed executed on 18.04.1978 by Raj Rani. Rajeshwari @ Raj Rani had filed a suit for cancellation of the said sale deed vide R.S.No.229 of 1978. The Suit was decreed ex parte on 26.03.1980. The respondent had filed an application under Order 9 Rule 13 of the Civil Procedure Code, which was rejected on 02.12.1981. Thereafter the Misc. Appeal filed by the respondent was also dismissed on 20.01.1983. Consequently the respondent had filed Regular Suit No.40 of 1983 for cancellation of ex-parte decree dated 26.03.1980 and permanent injunction. The injunction was sought for whole of the property of late Brij Mohan on the ground that one of his daughter Raj Rani had executed a sale deed of the half portion and in regard to the remaining half portion the second daughter Ram Lali had executed a Will deed in favour of the respondent. The suit was decreed by means of judgment and decree dated 18.07.1987. The appellants filed a First Appeal on 22.01.2014 alongwith an application for condonation of delay vide Misc. Case No.8 of 2014 as injunction of the whole property was sought and granted on the ground that the injunction of property of Ram Lali has been obtained fraudulently without impleading the appellants and no Will was executed by late Ram Lali. After inviting objections and hearing the application for condonation of delay has been rejected. Consequently the appeal stands dismissed. Hence the instant Second Appeal has been filed.

4. This second appeal was admitted on the following substantial questions of law:-

(i) Whether the impugned judgment and decree passed by the learned First Appellate Court ignoring the provisions made in Section 17 and Article 123 of the Limitation Act can be allowed to sustain?

(ii) Whether in absence of specific and clear denial on the part of respondent against the categorical pleading that the appellants for the first time came to know about the judgment and decree dated 18.07.1987 on 26.12.2013 the learned first appellate court has not committed grave error in rejecting the application for condonation of delay and closing the door of appellant for all times to come?

(iii) Whether the learned First Appellate Court has not committed serious illegality while passing the impugned order ignoring the law laid down by the Hon'ble Apex Court to the effect that a judgment and decree obtained by fraud is nullify and its invalidity can be set up at any stage even in collateral proceedings and before any Court whether inferior or superior?

5. Submission of learned counsel for the appellants was that the appellants, who are the sons of Ram Lali wife of Swami Dayal @ Dhondhey, were not impleaded in the Regular Suit No.40 of 1983 filed by the respondents despite the fact that injunction in regard to the property of Ram Lali was also sought. Therefore, the appellants could not know about the proceedings and judgment and order passed by the trial court. The appellants came to know about the judgment and decree dated 18.07.1987 when a copy of the same was filed by the respondent on 26.12.2013 in an appeal filed by the respondent Chandrani Versus Pati Rakhan and others under Section 11(2) of the U.P. Consolidation of Holdings Act 1953 before the Settlement Officer Consolidation, Sitapur. After coming to know about the order, the appellants applied for the certified copy of the order dated 18.07.1987 on 03.01.2014 and obtained the same. Thereafter applied for copies of all other documents on 09.01.2014 and 13.01.2014 to file the appeal and after receipt of the same the appeal was got prepared from 17.01.2014 to 19.01.2014 and thereafter filed the same on 22.01.2014 with an application for condonation of delay. But without considering the grounds raised by the appellants and that the Regular Suit was filed and the judgment and decree dated 18.07.1987 was obtained by playing fraud without impleading the appellants, who are legal heirs of Ram Lali the application for condonation of delay has been rejected merely on the ground that after passing of the judgment and decree dated 18.07.1087 in Regular Suit No.40 of 1983 many cases, relating to it, were contested by the parties of the said suit in various courts and revenue courts. While the appellants were admittedly not a party in the said suit. It was also submitted that the respondent herself had got filed an application for impleadment by some one impersonating as their mother Ram Lali, which was rejected, therefore, the appellants had no knowledge of it also.

6. He further submitted that in view of Section 17 read with Article 123 of the Limitation Act 1963, limitation to set-aside ex-parte decree and the decree obtained by fraud will start from the date of the knowledge and discovery of the fraud, but it has not been considered by the appellate court. He also submitted that the respondent, while filing the suit for setting aside the decree, had not disclosed the earlier proceedings of application under Order 9 Rule 13 of the CPC and the appeal filed by the respondent in regard to the judgment and decree in question. He also submitted that it is settled proposition of law that the judgment and decree obtained by fraud is nullity in the eyes of law and it can be challenged at any time and its invalidity can be set up at any time even in collateral proceedings. 7. On the basis of above learned counsel for the appellants submitted that the judgment and order passed by the appellate court is liable to be set aside and the appeal is liable to be allowed. Learned counsel for the petitioner has relied on Gauhati University Versus Niharlal Bhattacharjee; (1995) 6 SCC 731, Yashoda Devi and others Versus Special/Additional District Judge, Paratapgarh and others; 2008 (26) LCD 1, Ram Autar and others Versus Board of Revenue, Allahabad and others; 2016 (34) LCD 2724, Jeet Narain and another Versus Govind Prasad and others; 2010 (110) RD 374, Suresh Giri and others versus Board of Revenue, U.P. at Allahabad through its Registrar and others; 2010 (109) RD 566, Gama versus Board of Revenue U.P, Allahabad and others; 2015 (126) RD 334, Dahari Lal and others Versus Deputy Director of Consolidation and others; 2010 (110) RD 736, Rikhdev and another Versus A.D.M.(F), Azamgarh and others; 2011 (114) RD 631, S.P.Chengalvaraya Naidu (dead) by LRs. Versus Jagannath (dead) by LRs and others; (1994) 1 SCC 1, State of Maharashtra and another Versus Rattan Lal; 1993 All.C.J.1077 (SC), United India Insurance Company Ltd. Versus Rajendra Singh and others; 2000(18) LCD 586 (SC), Manoj Kumar Versus Commissioner, Luckow Division, Lucknow and another; 2017 (35) LCD 1778, Dodram Versus Collector, Pilibhit and others; 2014 (125) RD 333, Ram Niwas Singh and others Versus Deputy Director of Consolidation, Gorakhpur and others; 2016 (5) ADJ 710, Executive Officer, Antiyur Town Panchayat Versus G.Arumugam (D) by LRs; 2015 (128) RD 80 and N.Balakrishnan, Appellant Versus M.Krisnamurthy, Respondent; AIR 1998 Supreme Court 3222.

8. Per contra, learned counsel for the respondent does not dispute that Brij Mohan had two daughters, namely Raj Rani and Ram Lali. But he submitted that Raj Rani had executed a sale deed of her half portion in favour of the respondent and Ram Lali had executed a Will deed of her half portion in favour of respondent. He further submitted that since Ram Lali had already died, which was mentioned in the plaint, therefore, there was no occasion to implead her or her legal heirs. He further submitted that though the marriage of Ram Lali was settled but the groom had died on the date of marriage so she had not married and she died unmarried. The appellants were the sons of Kokila who was impleaded and not of Ram Lali. Kokila had also filed an application for impleadment by impersonating her as Ram Lali in R.S.No.40 of 1983, but her application was dismissed in default on 07.03.1984 as she did not appear to give evidence. Kokila, the mother of the appellants was impleaded as Kokila was the wife of Dhondhey and the appellants are the sons of Dhondhey, which is apparent from the entries made in the electoral roll of 1975, a copy of which has been filed alongwith the objection. He further submitted that the name of the respondent was mutated in place of Smt. Raj Rani and Ram Lali on 14.03.1981.

9. On the basis of above, learned counsel for the respondent had submitted that no fraud was played by the respondent by not impleading the appellants and in fact the fraud has been played by the appellants; firstly by trying to get Ram Lali impleaded in the suit by impersonation and secondly by filing highly time barred appeal showing them as the sons of Ram Lali while she had died unmarried on 05.07.1978. He had also submitted that the appellants had also filed an application for mutation and they were granted time to produce evidence but they did not appear so the same was rejected. Therefore, the application for condonation of delay has rightly been rejected by the concerned court and this appeal is misconceived and is devoid of any merit and is liable to be dismissed. Learned counsel for the respondents has relied on G. Ramegowda, Major and others Versus Special Land Acquisition Officer, Bangalore; (1988) 2 SCC 142 and In the matter of: Begum Shanti

Tufail Ahmad Khan; 2005 (Suppl.) RD 214.

10. I have considered the submissions of learned counsels of the parties and perused the records.

11. The undisputed facts are that one Brij Mohan had two daughters, namely Raj Rani and Ram Lali and after his death both had half share each in the said property. Raj Rani had executed a sale deed in favour of the respondent, which was set aside by means of the exparte judgment and decree dated 26.03.1980 passed in Regular Suit No.229 of 1978;Smt.Rajeshwari Versus Smt.Chandrani Devi. Hence after dismissal of the application under Order 9 Rule 13 of CPC and the appeal, Regular Suit No.40 of 1983 was filed for setting aside the judgment and decree dated 26.03.1980 and for permanent injunction in regard to whole of the property of Raj Rani and Ram Lali. Ram Lali or her heirs were not impleaded in the said suit and it was mentioned that Ram Lali had died on 05.07.1978. Claim for injunction in regard to the property of Ram Lali was set up on the basis of the alleged Will executed by her. The suit was decreed by means of the judgment and decree dated 18.07.1987. This second appeal is in regard to the property of Ram Lali only.

12. The appellants had filed a highly time barred appeal on 22.01.2014 against the judgment and decree dated 18.07.1987 on the ground that the decree was obtained by playing fraud by not impleading the appellants, who are the legal heirs of Ram Lali, therefore, they had no knowledge of the judgment and decree. On coming to know about the same on 26.12.2013, when it was filed by the respondent in an appeal under Section 11(2) of the U.P. Consolidation of Holdings Act, the appeal was filed therefore it was within time from the date of knowledge. The learned appellate court has not considered the plea of fraud raised by the appellants and the application for condonation of delay in filing the appeal has been rejected merely on the ground that after passing of the judgment and decree many cases were contested in various courts and revenue court between the parties of Regular Suit No.40 of 1983, but has not considered that the appellants were not party in the said suit and also whether the said judgment and decree was brought before the court in any proceeding by the respondent prior to 26.12.2013.

13. Section 17 of the Indian Limitation Act provides the effect of fraud or mistake, which is reproduced below:-

"17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;

the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."

In view of aforesaid Section the period of limitation shall not begin to run until the fraud is discovered by the person who is aggrieved.

14. Article 123 of the Limitation Act provides the limitation in the case where the summons or notice was not duly served, which is 30 days from the date of knowledge of the ex-parte decree. Article 123 is reproduced below:-

123.

To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation.- For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service.

Thirty days.

The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.

15. The Hon'ble Apex Court considered the Article 123 in the case of Gauhati University Versus Niharlal Bhattacharjee (Supra) and held that the limitation begins to run only when the appellant had knowledge of ex parte decree.

16. This court, in the case of Yashoda Devi and others Versus Special/Additional District Judge, Pratapgarh and others (Supra), has held that the period of limitation will start to run from the date of knowledge of contents of exparte decree and not from the date of mere knowledge of exparte decree.

17. This court, in the case of Ramautar and others Versus Board of Revenue, Allahabad and others (Supra), after considering the effect of Article 123 of the Limitation Act held that limitation of 90 days has been provided from the date of the decree where summons or notice was duly served and when summons or notice was not duly served then 90 days from the date of knowledge of exparte decree and held that the application under Order 9 Rule 13 CPC filed on 01.08.2013 for setting aside the order dated 31.01.1981 was within time from the date of knowledge of the decree and ignored the delay of 30-32 years.

18. The Hon'ble Apex Court, in the case of Jeet Narain and another Versus Govind Prasad and others (Supra), held that it is now well settled that fraud unravels everything and observed that the courts below have rejected the claim of the appellant therein only on the ground of limitation and they have not considered the dispute on merit. Therefore while considering the application for condonation of delay the merit of the case is also liable to be seen.

19. This Court, in the case of Suresh Giri and others Versus Board of Revenue, U.P. at Allahabad through its Registrar and others (Supra), has held that the fraud vitiates every solemn act and an act of fraud is always to be viewed seriously. The relevant paragraph 19 is extracted below:-

"19. It is well known that fraud vitiates every solemn act and an act of fraud is always to be viewed seriously. The observation of Lord Justice Denning in Lazarus Estates Ltd. Vs. Beasley (1956) 1 All E.R. 341 which is quoted below works as a lighthouse even today for those dispensing justice. "No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud. Fraud unravels everything." In view of the above, there is no room to doubt that an order of allotment of land, if obtained by collusion or fraud cannot be allowed to stand and the court would not intervene in such matters so as to permit squandering of the property of the State which vests in the Gaon Sabha. Protection of the State property from such fraud by initiation of action for cancellation of allotment/lease would however, be independent of the power of cancellation of such allotment envisaged under Section 198(4) of the Act for the reason that Section 198(4) comes into play in the limited sphere where the allotment is found to be irregular and not otherwise. Accordingly, in my considered opinion cancellation of allotment/lease on account of fraud is altogether an separate exercise which can be undertaken by the authorities concerned irrespective of Section 198(4) of the Act. However, proceedings for cancellation of allotment of land/lease on the ground of fraud has to be exercised with great care & caution and not blindly or on unilateral version. It is only when the concerned authority on the basis of relevant material has a reason to believe that the allotment is based upon fraud it may proceed in the matter. In so determining the stand, a distinction has to be made between fraud played by the beneficiary or the fraud committed by the officers or the authorities. Where the authority is of the opinion that the allottee is responsible for the alleged fraud it can initiate proceedings for cancellation of the allotment/lease and after giving opportunity of hearing to him may cancel the same. In the event the authority feels otherwise and the involvement of the allottee is not found and the needle of suspension is upon some employee/officer action it must take appropriate action first against such employee/officer and simultaneously if considered proper for cancellation of allotment/lease."

20. This court, in the case of Gama Versus Board of Revenue U.P. Allahabad and others (Supra), has held that in case of fraud limitation starts from the date when the fraud is discovered for the first time by the aggrieved person under Section 17 of the Limitation Act. The relevant paragraph 8 is extracted below:-

"8. So far as the issue relating to limitation is concerned, in case of fraud limitation starts from the date when the fraud is discovered for the first time by the aggrieved person under section 17 of the Limitation Act as held in Ram Pal Vs. State of U.P., , Sub-Divisional Officer has categorically held that order dated 25.3.1994 was secured by committing fraud. The order, being without jurisdiction and has passed ignoring statutory provisions, has been rightly recalled."

In view of above in case of plea of fraud it was required to be considered as to when the alleged fraud was discovered by the appellants because the limitation would start from that date only.

21. This Court, in the case of Dahari Lal and others Versus Deputy Director of Consolidation and others (Supra), has held that where an order is obtained by playing fraud, embargo of limitation does not come in the way.

22. This Court, in the case of Rikhdev and another Versus A.D.M.(F), Azamgarh and others (Supra), has held that it is well settled principle of law that any judgment or order obtained by fraud is nullity and non est in the eye of law and can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. The relevant paragraphs 26, 27 and 39 are extracted below:-

"26. It is well settled principle of law that any judgment or order obtained by fraud, its validity can be challenged in any proceeding. Before three centuries, Chief Justice Edward Coke proclaimed;

"Fraud avoids all judicial acts, ecclesiastical or temporal".

27. It is settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

39. In para-39 of the judgment of A.V. Papayya Sastry (supra), it has been laid down that it is established that when an order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior."

23. The Hon'ble Apex Court, in the case of S.P.Chengalvaraya Naidu (Dead) By LRs Versus Joganath (Dead) by LRs and others (Supra), about fraud and the effect of decree obtained by fraud has held as under in paragraph 1:-

"1. Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."

24. The Hon'ble Apex Court, in the case of State of Maharashtra and another Versus Rattan Lal (Supra), has held that on discovery of fraud, suppression or omission of fact, the authority is suo moto competent to reopen the proceedings and the period of limitation would start running from the date of such discovery.

25. The Hon'ble Apex Court, in the case of United India Insurance Company Ltd. Versus Rajendra Singh and Others (Supra), has held that it is unrealistic to expect the appellant to resist a claim at the first instance on the basis of fraud because he had at that stage no knowledge about the fraud allegedly played by the claimants. The relevant paragraphs 15 and 16 are extracted below:-

"15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.

16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."

26. In view of above in case the decree has been obtained by playing fraud the limitation would start from the date of discovery of the fraud. It is obvious also because unless a party comes to know about the fraud played by the other party he would not have any cause of action to challenge the same. Similarly in the case of ex-parte decree unless the concerned party comes to know about the ex-party proceeding and decree passed against him he cannot challenge the same. When a person has not been imleaded in any proceeding it is not expected that he would be knowing about the proceedings unless it is specifically shown by the other party as to how it was in the knowledge of the person who is challenging and when it was known to him.

27. In the present case Lower Appellate Court, without ascertaining as to whether the appellants had any knowledge about the passing of the decree before 26.12.2013, has rejected the application while there was no specific denial by the other side except that many cases were contested between the parties in regard to the property in question. It has never been disclosed as to whether the impugned jugement and decree was ever brought before the appellants in any such proceedings before 26.12.2013.

28. A plea was taken by the opposite party that Ram Lali had executed the alleged Will. The objection was filed before the lower appellate court against the application for condonation of delay with a plea that Smt. Ram Lali had no issue and she had died many years ago, but it is not mentioned that she was unmarried. The objection was mainly filed on the ground that the appellants were not party before the trial court, therefore, they have no right to file an appeal. It has also been alleged that in the original suit Smt. Kokila, the defendant in the suit, had tried to get impleaded impersonating as Smt. Ram Lali but the application was dismissed in default as she did not appear to give evidence whereas the application was rejected by means of the order dated 07.03.1984 with a finding that there is dispute in regard to the death of Smt. Ram Lali and the defendants may get her examined as a witness so there is no justification of her impleadment. In this view of the matter admittedly the appellants were not party in the original suit, therefore, the application could not have been dismissed merely on the ground that many cases have been contested between the parties of Regular Suit No.40 of 1983 in many courts and revenue court.

29. It was mentioned in paragraph 15 of the Suit that the defendant nos.1 and 2 are the real sisters whereas in the suit itself, a copy of which is available in the lower court record, it was mentioned in paragraph 3 and 7 that Smt. Rajeshwari and Ram Lali were real sisters and daughters of late Brij Mohan. Even then Smt. Raj Rani and Smt. Rajeshwari were impleaded, as defendant nos.1 and 2, both showing the wife of late Anirudh Prasad. Therefore, the submission of learned counsel for the appellants seems to be correct that Smt.Raj Rani and Rajeshwari were one and the same lady and both the names were of Smt. Raj Rani and the other sister was Ram Lali. Subsequently the name of Smt. Rajeshwari was got deleted also from the suit. It smacks of some mischief, which is required to be considered.

30. The application for condonation of delay in filing appeal cannot be rejected merely on the ground that there is great delay because the law of limitation is not meant to take away the right of appeal and the length of delay is not very much material if there is some substance in ground and on merit also.

31. The Hon'ble Apex Court, in the case of Shakuntala Devi Jain Versus Kuntal Kumari; AIR 1969 SC 575, has held that unless want of bonafides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

32. This court, in the case of Manoj Kumar Versus Commissioner, Lucknow Division, Lucknow and another (Supra), after considering several judgments of the Hon'ble Apex court, has held in paragraph 14 as under:-

"14- In view of the decision of the Apex Court it is abundantly clear that while considering the delay condonation application the court has to see the merit of the case also as the law of limitation is not meant to take away the right of Appeal. The courts are meant for imparting justice and not to scuttle the justice on technicalities. The length of delay is also not very much material if there is a substance on merit."

33. Similar view has been taken by this court in the case of Dodram Versus Collector, Pilibhit and others (Supra) and Ram Newas Singh and others Versus Deputy Director of Consolidation, Gorakhpur and others (Supra), relevant paragraph 7 of which is extracted below:-

"7. Otherwise also the law of limitation is not meant to take away the right of appeal. The Hon'ble Apex Court as well as this Court in number of cases, has held that while considering the delay condonation application, the court must be sympathetic and it has to see the merit of the case also as the law of limitation is not meant to take away the right of Appeal. The courts are meant for imparting justice and not to scuttle the justice on technicalities. The length of delay is also not very much material if there is a substance on merit. It has also been held that if there has been some slackness on the part of applicant and that has caused inconvenience to the other side that can be compensated in terms of money instead of closing the door of justice for ever."

34. The Hon'ble Apex Court has also taken similar view in the case of Executive Officer, Antiyur Town Panchayat Versus G.Arumugam (D) by LRs (Supra). However the same may not be applicable on the present case because in that case the Hon'ble Court has held that in case there is an attempt on the part of the Government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view and condone the delay.

35. In view of above, the Rules of limitation are not meant to destroy the right of the parties, rather they are meant to see that the parties do not resort to dilatory tactices to seek their remedy promptly. Therefore while considering the application for condonation of delay the court has to see carefully the explanation given by the aggrieved person and also the objection and if there is some substance in the explanation the delay may be condoned. The period is not very material because some times the delay of a very short period may not be condonable, but sometimes the long delay may be condonable if the explanation seems to be justified and sometimes looking to the merit of the case also the delay may be condoned so that the injustice may not be done to a party. In case of fraud, the limitation will not come in the way if it is within time from the date of discovery of fraud or further delay has been sufficiently explained which is to be seen by the concerned court.

36. This view is fortified by the law laid down by the Hon'ble Apex Court in the case of N.Balakrishnan, Versus M.Krishnamurthy (Supra), the relevant paragraphs 8 to 13 are extracted below:-

"8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.

11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12 A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].

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 it is 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 delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet 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."

37. The Hon'ble Apex Court, in the case of G.Ramegowda, Major and others Versus Special Land Acquisition Officer, Bangalore (Supra), has held that if there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. However, each case will have to be considered on the particularities of its own special facts and the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice. The relevant paragraph 14 is extracted below:-

"14. The contours of the area of discretion of the Courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See: Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd., [1962] 2 SCR 762; Shakuntala Devi Jain v.Kuntal Kumari, [1969] 1 SCR 1006; Concord of India Insurance Co. Ltd. v. Nirmala Devi and ors., [1979] 3 SCR 694; Lala Mata Din v. A. Narayanan, [1970] 2 SCR 90 and Collector, Land Acquisition v. Katiji, [1987] 2 SCC 107 etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In Katiji's case, (supra), this Court said:

When substantial justice and technical considerations are A pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay."

It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

38. In the case of In the matter of: Begum Shanti Tufail Ahmad Khan; 2005 (Suppl.) RD 214, relied by learned counsel for respondent, a Coordinate Bench of this court has held that the law of limitation is a law of repose based on rules of estoppel. It serves an important purpose of bringing finality to state of affairs which have prevailed in the knowledge of parties for sufficiently long period of time. This court refused to grant probate and dismissed the case as the laches were not adequately explained on record. However, it is not applicable on the facts and circumstances of present case.

39. In view of above, this court is of the considered opinion that the First Appellate court has failed to consider the grounds raised by the appellants for condonation of delay in filing the first appeal and the law applicable on it and has rejected the application without recording any finding in regard to the pleas raised by the appellants and the date of knowledge as to when they came to know about the judgment and decree impugned in the appeal. Therefore, the judgment and decree passed by the Lower Appellate Court is not sustainable in the eye of law and is liable to be set aside. The substantial questions of law are decided accordingly.

40. The second appeal is partly allowed. The judgment and decree dated 07.12.2016 passed in Misc. Civil Case No.08 of 2014;Pati Rakhan Versus Smt. Chandrani by the Additional District Judge, Court no.9, Sitapur is hereby set aside. The lower appellate court is directed to reconsider and decide the case afresh in accordance with law and the observations made here-in-above in this judgment.

41. No orders as to costs.

.........................................(Rajnish Kumar,J.)

Order Date :-03.02.2021

Banswar