Ishwar Saran (Since Deceased) And ... vs Vijai Kumar Kushwaha (Since ...
2021 Latest Caselaw 11066 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR   
 
Court No. - 1
 

 
Case :- SECOND APPEAL No. - 1169 of 2018
 

 
Appellant :- Ishwar Saran (Since Deceased) And 4 Others
 
Respondent :- Vijai Kumar Kushwaha (Since Deceased) And 3 Others
 
Counsel for Appellant :- Manjari Singh,Ashutosh Gupta,Kunal Ravi Singh
 

 
Hon'ble J.J. Munir,J.

1. This second appeal is directed against an order of the learned Additional District Judge, Court No. 15, Allahabad in Miscellaneous Case No. 475 of 2017, rejecting an application to condone the delay in preferring an appeal from the judgment and decree of the Additional Civil Judge (Junior Division), Court No. 12, Allahabad dated 14.08.2013 passed in O.S. No. 485 of 1989.

2. Looking to the limited issue that is involved in this appeal, an elucidation of facts giving rise to the suit or the merits of the parties' case is not required.

3. The plaintiff-appellants instituted a suit for partition of the suit property, subject matter of O.S. No. 485 of 1989, against the defendant-respondents. The Additional Civil Judge (Junior Division), Court No. 12, Allahabad tried the suit and dismissed it vide her judgment and decree dated 14.08.2013. This decree was challenged belatedly by an appeal under Section 96 C.P.C. preferred to the learned District Judge of Allahabad on 17.05.2017. The appeal was accompanied by an application under Section 5 of the Limitation Act also dated 17.05.2017, seeking the delay in preferring the appeal to be condoned. The application was duly supported by an affidavit. This delay condonation application bearing Paper No. 5-C was registered as Miscellaneous Case No. 453 of 2017 on the file of the learned District Judge, Allahabad. The belated appeal, along with the delay condonation application, was assigned to the learned Additional District Judge, Court No. 15, Allahabad, where it was numbered as Miscellaneous Case No. 475 of 2017. It is this application for condonation of delay that has come to be rejected by the order impugned, and with it, the accompanying appeal, as time barred.

4. It is said in the affidavit filed in support of the delay condonation application that upon dismissal of the appellants' suit by the Trial Court, they sought advice from their Counsel about the steps to be taken against the said decree. It is stated that the learned counsel advised them that since a second appeal was already pending before this Court relating to the same property, no appeal was required to be filed from the Trial Court's decree. It is further stated that from the judgment and decree passed in O.S. No. 128 of 1990, an appeal was carried and further, a second appeal to this Court, being Second Appeal No. 1765 of 1999, which was said to be pending. It is stated that it was in connection with briefing the learned Counsel in the second appeal that the Counsel in the High Court came across the judgment and decree dated 27.04.2017 passed by the Trial Court, that is in question here. The learned Counsel asked the appellants whether the said decree has been appealed, to which the appellants responded by disclosing that the earlier Counsel had advised them that it was not required. The appellants were thereupon advised to forthwith appeal the judgment and decree passed by the Trial Court under reference.

5. Upon receipt of the said advice, the appellants got an application made for the inspection of records through Mr. Uma Shankar Tiwari, Advocate on 28.04.2017. The inspection was made on 04.05.2017. There was in between a strike called for by the Counsel of the District Court, that led to some delay in presentation of the application for a certified copy of the judgment and decree passed by the Trial Court. The application for a certified copy was made on 09.05.2017. The appeal was presented on 17.05.2017.

6. It has been averred specifically that the delay in preferring the appeal is not deliberate, but proceeds from the wrong legal advice given by Mr. Santosh Kumar Srivastava, Advocate earlier engaged by the appellants, which they bona fide believed to be true and did not appeal earlier. It is stated that as soon as the appellants received advice on 27.04.2020 during briefing on the pending second appeal under reference by the learned Counsel appearing in the High Court, they have acted without delay to prefer the appeal. The defendant-respondents contested the application for condonation of delay and said that the delay has been deliberately made. The defendant-respondents, in answer to the delay condonation application, did not file any objections, or affidavits. They have objected orally. It is recorded by the learned Judge in the order impugned that the defendant-respondents have said that there is no good ground shown in the application under Section 5 of the Limitation Act that may make out a case for the condonation of delay.

7. This appeal was admitted to hearing vide order dated 15.11.2018 with reference to the substantial questions of law nos. 1, 2 and 4 formulated in the memorandum of appeal, but without the Court actually formulating any substantial question of law in the order of that date. Accordingly, when the appeal came up for hearing on 02.09.2021, this Court has proceeded to formulate the following substantial questions of law:

(1) Whether legal advice not to file an appeal bona fide believed to be correct, would constitute 'sufficient cause' to condone the delay as postulated under Section 5 of the Limitation Act?

(2) Whether the Court while considering a plea for condonation of delay ought to lean in favour of hearing on merits, particularly, in the case of a first appeal, rather than shutting out hearing?

8. Since the respondents have not appeared despite service being held good vide order dated 09.08.2021, this appeal has been heard ex parte and judgment was reserved on 02.09.2021.

9. The first substantial question of law noted by the learned counsel for the appellants is about bona fide belief in the genuineness of a legal advice received to qualify for "sufficient cause" to condone delay, as postulated under Section 5 of the Limitation Act. What may constitute sufficient cause and what may not, is indeed a substantial question of law. In support of the submission that delay occasioned on account of bona fide belief in the soundness of legal advice received, that may be found to be incorrect, is a ground in law 'sufficient' to condone delay, the learned counsel for the appellant Mr. Kunal Ravi Singh relies on a decision of this Court in Allah Tala vs. Deputy Director of Consolidation and others, 1993 AWC 155 All. The said decision involved choosing of a wrong forum by the petitioner to file a revision before the Deputy Director of Consolidation, Jalaun at Orai, whereas the jurisdictional Deputy Director was the Deputy Director of Consolidation, Kanpur Dehat. It was in those circumstances that the order of the Deputy Director of Consolidation, who had jurisdiction, declining to condone delay on account of wrong legal advice in preferring the earlier revision before a territorially incompetent Tribunal was held to be a "sufficient cause".

10. It is true that in the last mentioned case, it was not a case of inaction, but steps taken in the wrong forum, based on wrong legal advice that was bona fide believed to be true. Here, this Court finds that there is a previous litigation pending between parties, where the defendants had instituted a suit against the plaintiffs, seeking to recover possession on ground that they were licensees in the suit property. This has figured in the judgment of the Trial Court, whereagainst the appeal has been scuttled on the ground of delay. The appellants have stated with full particulars as to what advice they received, particularly, nominating the learned Counsel from whom they received it and how and under what circumstances, they realized that it was incorrect. These assertions have not been rebutted on behalf of the defendant-respondents on affidavit. Therefore, these remain un-rebutted entirely.

11. The Lower Appellate Court has also not assigned reasons why it has disbelieved the explanation offered by the defendant-appellants. Rather, there is a cryptic remark carried in the impugned judgment with reference to the defendant-appellants' case for condonation to the effect that : "इसप्रकार प्रार्थी के प्रार्थनापत्र एवं शपथपत्र में वर्णित कथनों के आधार पर विलम्ब को क्षमा किये जाने पर कोई समुचित आधार दर्शित नहीं है।". There is no reason why the Appellate Court has reached its conclusions to disbelieve the defendant-appellants' explanation. But, that is not the substance of the substantial question of law under consideration. What is of relevance is that whatever explanation for the delay the appellants have furnished in the affidavit filed in aid of the delay condonation application, carries facts and urges a ground to the effect that the delay was occasioned by incorrect legal advice bona fide believed to be true. A wrong legal advice which a party bona fide believes to be true generally constitutes, though not always, sufficient cause to condone delay within the meaning of Section 5 of the Limitation Act. The substantial question of law no. 1 is, therefore, answered in the affirmative.

12. So far as the other substantial question is concerned, it is mooted by Mr. Kunal Ravi Singh that condonation of delay is a matter where the Court should lean in favour of hearing on merits. It is true for a principle that there is high authority that says that the Court should, as far as may be opt to decide on merits, rather than shutting out parties on the technicality of limitation. Reference is to be made in this connection to the decision of the Supreme Court in Collector, Land Acquisition, Ananantnag and Another v. Mst. Katiji and Others, (1987) 2 SCC 107, where, it has been held:

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice─that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantice approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are 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.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fide. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected on on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

13. There could be a situation, where the delay is indeed not condonable in the sense that circumstances show gross negligence, or the litigant may be demonstrated to be one who has slept over his rights. Those are cases, where the other side contests the claim, rebuts the facts and disputes what the party seeking condonation asserts or urges. Here, the defendant-respondents have not cared to file a written objection to the delay condonation application, let alone an affidavit rebutting the allegations made on affidavit in support of the delay condonation application.

14. It is also to be remembered that the proceedings where delay is sought to be condoned, though not in themselves very material, may not be irrelevant altogether. The delay here is sought to be condoned in a first appeal. It is well acknowledged that a First Appeal is about a very valuable right of the litigant, inasmuch as it is an appeal of right, both on facts and law. This is what Section 96 C.P.C. makes it to be. This right of appeal is not subject to any limitation, such as the demonstrable involvement of a substantial question of law or it being subject to discretion of the Court. This being the nature of the appeal envisaged under Section 96 C.P.C., a prayer for condonation of delay must necessarily be viewed in the context of the right that the appellants have at stake. The nature of the jurisdiction, therefore, would all the more require a relatively liberal exercise of the discretion to condone delay, once the explanation comes within what the law understands as "sufficient cause". Here, as remarked elsewhere in this judgment, the Lower Appellate Court has done a short shrift of the matter to conclude, without assigning any reason that the cause shown is not sufficient.

15. This Court is of opinion that the substantial question of law no. 2 should also be answered in the affirmative.

16. In the circumstances, this Court is of opinion that this appeal must succeed. The appeal succeeds and is hereby allowed. The impugned judgment dated 31.07.2018 passed by the learned Additional District Judge, Court No. 15, Allahabad in Miscellaneous Case No. 475 of 2017 is hereby set aside and reversed. The Delay Condonation application stands allowed.

17. The Lower Appellate Court shall now proceed to hear the appeal, if there is no other defect, under Order XLI Rule 11 C.P.C.

18. Costs easy.

Order Date : 07.09.2021

Deepak