Jokhan vs Murtuja And 9 Others
2021 Latest Caselaw 11379 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

  A.F.R.
 
Judgment  Reserved On:  12.11.2021
 
          					Judgment Delivered On: 26.11.2021
 

 
Court No. - 28
 

 
Case :- SECOND APPEAL No. - 584 of 2021
 

 
Appellant :- Jokhan
 
Respondent :- Murtuja And 9 Others
 
Counsel for Appellant :- Kashi Nath Shukla,Sneh Ranjan Shukla
 
Counsel for Respondent :- Santosh Kumar Rai,Surendra Kumar Chaubey
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

1. This Second Appeal is directed against an order of the learned Additional District Judge, Court No.4 Mau, Misc. Case No.103 of 2018 (Jokhan and ors vs.Murtaza and ors.) rejecting an application to condone the delay in preferring an appeal from the judgment and decree of the Additional Civil Judge (Junior Devision) court no.8 Azamgarh dated 24.01.1998 passed in Original Suit No.540 of 1986.

2. Relevant facts for the decision of the second appeal are that respondents-plaintiffs filed a Suit for cancellation of sale deed and injunction against the appellants-respondents. In that original suit the appellants-respondents filed their counter claim seeking relief of possession and injunction against the plaintiffs-respondents. The learned trial court vide judgment and decree dated 24.01.1998 dismissed the original suit as well as the counter claim. This decree was challenged by the plaintiffs-respondents in civil appeal no.54 of 1998 which was later transferred to the District Mau and numbered as Civil Appeal No.20 of 2014 and is still pending. The appellants-defendants preferred an appeal belatedly under Section 96 of CPC against dismissal of the counter claim before the District Judge, Mau and to condone the delay also moved an application under Section 5 of the Limitation Act on 04.02.2018. The application was supported by an affidavit. This application was assigned to the learned Additional District Judge, court no.4, Mau and its number is 103 of 2018. This application for condonation of delay has been rejected by the impugned order.

3. Grounds taken in the accompanying affidavit with application to condone the delay are that applicant/ appellant- Jokhan is an illiterate rustic villager and other appellants are also illiterate villagers. They have no knowledge of law. The trial court dismissed the Suit of plaintiffs-respondents on 24.01.1988 and the appellants were in the impression that the Suit has been dismissed so they have not to take any further action and in this belief they bonafidely were contesting the Civil Appeal No.54 of 1998 (Kamruddin and ors vs. Rojia and ors) and that appeal is still pending in the court of additional District Judge, court no.3 Mau. No decree was prepared in respect of dismissal of counter claim. During preparation of arguments of the appeal in December 2019 the new counsel engaged, told the applicant that they have also to file an appeal against the decree then applicants/ appellants moved an application before the appellate court for preparation of the decree on which the learned appellate court passed the order dated 06.12.2017 that in the decree prepared there is description of counter claim. Then the counsel for the appellant submitted before the court that separate decree is required against the counter claim on which the learned court agreed to consider it. Meanwhile the presiding officer was transferred to other court. Then on the basis of the order dated 06.12.2017, the applicants/ appellants moved an application for obtaining copy of the decree on 08.02.2018. Thereafter applicant/ appellant- Jokhan became sick and unable to move. When he recovered from the illness, then on 02.07.2018 he came to the court and got the appeal prepared and filed it without any further delay. It has also been alleged that delay in preferring the appeal is not deliberate but under bonafide impression.

The opposite parties/ respondents filed their objections 9Ga against the aforesaid application and alleged therein that the original suit was decided in the year 1998 in District Azamgarh and Suit of the plaintiffs was well as counter claim of defendants were rejected and decree was prepared. It is specifically mentioned in the decree that Suit of the plaintiffs and counter claim of the defendants are hereby dismissed. The defendants have not preferred any appeal against dismissal of the counter claim. The averments of the appellants that no decree of counter claim was prepared is absolutely wrong. No sufficient reason for delay has been shown. Applicants were aware from the very beginning about the appeal filed by the father of the opposite party. It has also been alleged that as the case has been decided at District Azamgarh the appeal should have been filed in District Azamgarh. On the aforesaid grounds, the opposite parties prayed that application to condone the delay be rejected. The learned Additional District Judge, court no.4, after hearing the both the parties, by the impugned order dated 12.10.2018 has rejected the application to condone the delay.

4. Learned counsel for the appellants mainly contended that the appellants could not understand the effect of judgment and decree passed by the trial court by which counter claim was dismissed, therefore, could not prefer first appeal within the period of limitation. Further no decree in respect of the counter claim filed by the defendants-appellants was prepared. When the appellant engaged other counsel in Civil Appeal, he advised to file an appeal against the dismissal of the counter claim. The learned counsel also contended that the court of Additional District Judge IV did not take pain to deal with Section 5 of the Limitation Act which gives discretion to the court. The appellate court without proper application of mind and adopting very technical approach has rejected the delay condonation application. The expression sufficient cause cannot be strictly interpreted. Lenient approach should be adopted to do the substantial justice. The learned counsel also contended that first appeal against the dismissal of original suit is still pending and hence no prejudice will be caused to the respondents. Learned counsel placed reliance on the decision of this Court in Second Appeal No.1169 of 2018 dated 07.09.2021 in (Ishwar Saran vs. Vijay Kumar Kushwaha and 3 ors) and another decision of division bench this Court dated 09.06.2021 passed in Special Appeal Defective No. 242 of 2021 (Mata Pher Mishra vs. State of U.P. and two ors).

5. Learned counsel for the respondents defended the impugned order and contended that dismissal of counter claim was in the knowledge of the appellants since the beginning. They were also participating in the appeal filed by the respondents so they were aware of all the proceedings but opted not to file any appeal against the dismissal of the counter claim. Later on with much delay, the appeal along with delay condonation application was filed. There is no sufficient ground to condone the delay and the appellate court has rightly rejected the delay condonation application.

6. In this Second Appeal the appellant has challenged the order dated 12.10.2018/ 25.10.2018 by which the delay condonation application has been rejected in misc. case no.103 of 2018. The impugned order dated 12.10.2018 is not a decree, it is only a formal order which is evident from the perusal of the relevant papers. Although it has been described in the memo of the appeal as judgment and decree dated 12.10.2018/ 25.10.2018 but in true sense it is not a decree, it is only a formal order. The consequential order of dismissal of first appeal will come in the purview of decree but the said order is not under challenge nor has been referred in the memo of appeal. The provision of Section 100 of CPC which provides for Second Appeal is as follows:

"Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law."

It is clear from the aforesaid provision that Second Appeal before the High Court shall lie from a decree passed in appeal. As the impugned order does not come under the purview of decree and it being only a formal order, no Second Appeal will be maintainable against the impugned order. This second appeal is liable to be dismissed on this ground alone.

7. Accordingly the second appeal is hereby dismissed.

Order Date :- 26.11.2021

C. MANI