Satya Narain And Ors. vs Mati Ram And Ors.
2025 Latest Caselaw 8864 ALL

Allahabad High Court

Satya Narain And Ors. vs Mati Ram And Ors. on 10 April, 2025

Author: Abdul Moin

Bench: Abdul Moin

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:20287
 
Court No. - 5
 

 
Case :- SECOND APPEAL No. - 89 of 2023
 

 
Appellant :- Satya Narain And Ors.
 
Respondent :- Mati Ram And Ors.
 
Counsel for Appellant :- Mohiuddin Khan,Nijam Ahamad
 
Counsel for Respondent :- Piyush Mishra,Vinay Prakash Tiwari
 

 
Hon'ble Abdul Moin,J.
 

1. Sri Mohd. Zaid Khan holding brief of Sri Mohiuddin Khan, learned counsel for the appellants, states that he does not intend to press the appeal against respondents no.4 to 8 and prays that the same may be dismissed as withdrawn.

2. Accordingly, the appeal is dismissed as withdrawn so far as it pertains to respondents no.4 to 8.

3. Heard.

4. Instant second appeal is being decided at the admission stage itself on the following substantial question of law:-

"i. Whether the learned First Appellate Court has committed a manifest error of law by adopting a hyper-technical view while considering the application for condonation of delay of about 4 months in filing regular civil appeal thereby the judgment passed by the learned First Appellate Court is vitiated in law?"

5. Learned counsel for the appellants has argued that the appellants were defendants in original suit no.770 of 2004 in re: Kaloo (deceased) through legal heirs vs. Kunnu (deceased) through legal heirs and others. The said suit was allowed vide judgment and order dated 01.04.2017, a copy of which is part of the appeal.

6. It is contended that the appellants had no information about the said case. The appellant no.1/1 namely Ram Sahai filed an application dated 29.08.2017 (Page 75), a copy of which is Annexure-5 to the appeal, contending that when he went to his Advocate for knowing the status about the original suit it transpired that the learned trial court has decided the matter on 01.04.2017. Thereafter, he filed an appeal along with an application for condonation of delay. The delay is said to be of four months. The application for condonation of delay also indicated that the appellant no.1/1 had gone away for the purpose of the employment and only returned subsequent thereto.

7. It is contended that the learned first appellate court vide the order impugned dated 25.03.2019, copy of which is the part of the appeal, rejected the application for condonation of delay on the ground that there were various defendants in the original suits filed on behalf of the plaintiffs and it has not been indicated as to why the other defendants did not do pairvi of the case.

8. The learned first appellate court did not find any merit in the application for condonation of delay and consequently rejected the same vide order impugned dated 25.03.2019 and hence the instant appeal.

9. The substantial question of law as is to be considered by this Court is as to whether the learned First Appellate Court has committed a manifest error of law by adopting a hyper-technical view while considering the application for condonation of delay of about 4 months and refusing to condone the delay.

10. In this regard, learned counsel for the appellants has placed reliance on the judgment of Hon'ble Supreme Court in the case of Kumari Sahu vs. Bhubanananda Sahu and others arising out of SLP (Civil) No(s)(C) 24443/2024 decided on 31.01.2025 to contend that the Hon'ble Supreme Court has held that a hyper-technical approach should not be taken by the Courts in condoning delay more particularly in order to balance the scales of justice and especially so when the socioeconomic background of a large number of India's population who approach the doors of justice as litigants come from the rural areas.

11. On the other hand, Sri Piyush Mishra, learned counsel for respondents no.1 to 3, has indicated that even before the learned trial court the defendants/appellants failed to appear and the appeal filed by them has also been filed belatedly which indicates the deliberate tactics on their part to somehow or the other delay the matter and consequently considering their conduct the delay in filing the appeal has correctly been rejected and thus there is no infirmity in the order.

12. Having heard learned counsels for the parties and having perused the records, it emerges that an original suit was filed by the respondents herein in the year 2004. Despite the defendants/appellants having notice despite filing their written statement, they failed to appear before the learned trial court for the purpose of their evidence with the result that the learned trial court vide judgment dated 01.04.2017 had allowed the original suit. The appellants contending that they had no information about the said case being decided, filed an appeal after a period of four months. In the application for condonation of delay the appellants specifically indicated that the appellant no.1/1 was doing pairvi in the matter and that he had gone outside the place where the case had been instituted before the learned trial court in order to seek livelihood and it is only when he returned then he came to know that the case has been decided by the learned trial court and consequently filed an application for condonation of delay along with the appeal which is said to be of four months.

13. The learned first appellate court vide order dated 25.03.2019 has rejected the application for condonation of delay on the ground that there are other defendants who would have done pairvi of the case and no reasons emerge as to why the other defendants did not do pairvi.

14. Admittedly, the delay is said to be of about four months and the application for condonation of delay has been rejected vide the order impugned.

15. When the facts of the instant case are seen in the context of law laid down by Hon'ble Supreme Court in the case of Kumari Sahu (supra) it emerges that the appellants come from a rural background and appellant no.1/1 (before learned appellate court) used to do pairvi of the case but had gone away from the place where the litigation was pending before the learned trial court in order to secure employment/livelihood. It is only when the appellant no.1/1 returned that he came to know about the learned trial court having decided the case and consequently filed the appeal with a delay of about four months which has not been condoned by the learned first appellate court by taking a hyper-technical view of the matter.

16. The Supreme Court in the case of Kumari Sahu (supra) has held as under:-

"10. We are aware of the caution that needs to be exercised in matters relating to condonation of delay of longer durations. However, it must be noted that balancing of scales of justice becomes imperative when it comes to such matters, especially given the socio-economic background of a large number of India's population who approach these doors of justice as litigants.

11. We find it relevant to produce here a paragraph from Rafiq and Another v. Munshilal and Another1, a case which had a very similar factual matrix regarding delay due to Counsel's fault, the following was observed:

"3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr A.K. Sanghi."

(Emphasis is mine)

12. Even though the above-quoted case law is from the year 1981, we cannot deny the fact that the ground reality of a considerable proportion of litigants being completely dependent on their counsel remains the same, especially in regions with lower economic and educational prowess."

17. Incidentally, thedelay before Hon'ble Supreme Court was of 225 days vis-a-vis the delay in the appeal filed by the appellants which is said to be of four months (approximately 120 days).

18. Suffice to refer again to the judgment of Hon'ble Supreme Court in the case of Kumari Sahu (supra), the relevant observations of which have been reproduced above, which clearly indicate that in the peculiar context of a litigant coming from a rural background and the socioeconomic background, as in the instant case, wherein the appellant/defendant had to go outside the place where the original suit had been instituted for the purpose of his livelihood and he was doing pairvi of the case itself makes out a sufficient ground which should have been considered by the learned first appellate court in condoning the delay.

19. Considering the aforesaid, the appeal is allowed. The order impugned dated 25.03.2019 passed by the learned first appellate court is set-aside. Learned first appellate court is directed to decide the appeal on merits. Considering that the original suit had itself been filed in the year 2004 and a period of almost 21 years have lapsed as of date as such considering this peculiar fact the learned first appellate court is directed to decide the appeal in accordance with law after hearing all the parties concerned within a period of six months from the date a certified copy of this order is brought on record.

20. It is also provided that no adjournments would be granted by the learned first appellate court in a routine manner. In case the first appellate court is of the view that repeated adjournments are being sought by either of the parties it would be open for the first appellate court to impose exemplary cost for such adjournments or to proceed to decide the appeal on merits.

21. Let the trial court record be returned as per rules.

Order Date :- 10.4.2025

A. Katiyar