Chattisgarh High Court

Durgeshwari Dubey vs Mohan Agrawal And Ors on 28 January, 2022

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                                                                                                         NAFR

                            HIGH COURT OF CHHATTISGARH, BILASPUR

                                       Second Appeal No. 245 of 2011

                                     Judgment reserved on 23.11.2021

                                    Judgment delivered on 28 /01/2022

         Durgeshwari Dubey S/o. Baijnath Dubey, aged about 41 years, occupation
         Agriculturist and Business, R/o. Village Temari, P.S. Patna, Tahsil Baikunthpur,
         District Koriya (CG) Power of Attorney of Ishwar Sharan Dubey, S/o. Baijnath
         Dubey, aged about 44 years,                        R/o. Village Temari, P.S. Patna, Tahsil
         Baikunthpur, District Koriya (CG)

                                                                        ---- APPELLANT/PLAINTIFFS

                                                        Versus

     1. Mohan Agrawal S/o. Gopal Singh, Occupation Contractor SECL, R/o.
         Jainagar, Post and P.S. Jainagar, Tahsil Surajpur, District Surguja (CG).

     2. Maman S/o. Mahavir Agrawal, aged about 35 years, Occuatpon Contractor's
         Munsi, R/o. Katkona Bazarpara, P.S. Patna, Tahsil Baikunthpur, District Koriya
         (CG).

     3. Salikram S/o. Ram Charitra, aged about 32 years, Occupation Contractorship,
         R/o. Village Soranga, Post and P.S. Patna, Tahsil Baikunthpur, District Koriya
         (CG)

                                                                -----RESPONDENTS/DEFENDANTS

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For the Appellant : Mr. Ashok Kumar Shukla, Advocate For the Respondent No.1 and 2 : Mr. Ashish Surana, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment

1. This Second Appeal under Section 100 of Civil Procedure Code, has been filed against the judgment and decree dated 07.05.2003 passed by Additional District Judge, Baikunthpur District Koriya in Civil Suit No. 9B/1999 by which

the suit filed by the plaintiff/appellant for grant of Rs. 30,000/- along with interest from the defendants for supply of certain materials to respondents/defendants has been dismissed and against that order First appeal preferred by the appellant was dismissed by the First Appellate Court on account of delay of 9 days in filing the appeal.

2. On 24.06.2021, the instant second Appeal was admitted on the following substantial question of law.

" Whether the first appellate Court was justified in rejecting the application for condonation of delay in filing the appeal preferred by the appellant/plaintiff holding that no sufficient cause has been shown by recording a finding which is perverse to the record".

3. Facts reflected from the records of the case are that the appellant is owner of the tractor bearing No. MP-27 BO -271 and he was having authority to control and manage the said tractor from his brother namely Ishwar Sharan Dubey. The defendant No. 2 and 3 are authorized agents of defendant No.1 and they were working as per direction of defendant No.1. The defendant No.1 was a contractor and he was involved in the Civil construction work under SECL Baikunthpur. In performance of construction work, the defendant No.1 had utilized vehicle and has engaged the tractor of plaintiff for transportation of sand, bricks, cement and rods etc. as detailed in the plaint. The plaintiff has carried out work of transport as agreed between them in the year 1993 to 1995; and consequent thereto raised bills of the work of transport done by him during the relevant periods, for which he claimed total sum of Rs. 30,000/-.

4. The defendant No.3 has filed his written statement and admitting the fact that transportation work was done but denying his liability as he was working as clerk under defendant No.1 and therefore, defendant No.1 was liable to pay amount and not the defendant No.3. The defendant No. 1 has not filed any written statement. Notice was issued to defendant No. 1 has been returned as unserved, therefore, plaintiff has filed an application for service of notice through paper publication as per provisions of CPC.

5. The learned trial Court vide its order dated 09.05.2001 allowed the said application and has granted the permission for publication of notice in the newspaper. The notice was published on 13.06.2001 in Dainikbhaskar daily newspaper and the same was taken on record. Since the defendant No. 1 has chosen not to appear before the trial Court, the trial Court was pleased to

proceed ex-parte proceeding against defendant No.1.

6. On the pleading of the parties, learned trial Court has framed two issues (I) whether the plaintiff is entitled to get Rs. 30,000/- from the defendant jointly or separately. (ii) whether the plaintiff is entitled to get the amount of interest or not.

7. The plaintiff examined himself before the trial Court to substantiate his pleadings made in the plaint and exhibited the documents from Ex.P-2 to Ex.P141 and also examined other witnesses namely Balsai who was the labour under him to substantiate his pleadings.

8. The learned trial Court vide its judgment and decree dated 09.08.2002 has dismissed the suit recording the findings that the suit falls within the ambit of section 10 of the Contract Act and the plaintiff failed to establish the existence of contract with defendant No.1. The plaintiff has preferred the first appeal under Section 96 of the CPC mainly contending that the trial Court has not appreciated the evidence on record and recorded a perverse finding and dismissed the suit which is against the law. The defendant was proceeded ex- parte which shows the non-application of mind, therefore, the judgment and decree passed by the trial Court is liable to be set aside. It was further contended that there was delay of 9 days in filing the appeal therefore, the appellant has also filed an application under Section 5 of the Limitation Act, mainly contending that the original appellant was ill from 12.11.2002 to 23.11.2002 and 24.11.2002 was Sunday being holiday. He has filed the appeal on 25.11.2002 as such there was delay of 9 days which is bonafide delay and there is sufficient reason for condoning the delay. The said application was also supported with the affidavit of the appellant.

9. The defendant No.1 has filed reply to the application, denying the averment made therein contending that he has not moved any application for obtaining certified copy of judgment and decree dated 10.08.2002 as such there is delay of 11 days in filing the appeal. It has been further contended that on account of negligence committed by the appellant and he tried to adjust the said 11 days by giving the false statement regarding his medical illness, in fact he was medically fit, even he was travilling from Koriya to Ambikapur and the original appellant was also healthy, therefore, the reason given by the appellant is not bonafide and would pray the appeal as well as application for condonation of

delay be kindly dismissed.

10. The said appeal was dismissed by the First appellate Court even without registration of the same by holding that the appeal is barred by limitation. Thereafter, the appellant has filed the writ petition No.283 of 2003 before this Court challenging the said impugned order passed by the First appellate Court. This Court vide its order dated 30.09.2010 while granting the permission has recorded the finding that the order passed by the First appellate Court would amount to a decree and is appealable under Section 100 of CPC before this Court. Therefore, permission granted to the appellant for filing a duly constituted second appeal under Section 100 of CPC. Hence, this appeal.

11. This Court while admitting the appeal has also considered this fact that the appellant has filed an application for condition of delay as there was delay of 2631 days in filing the appeal, this Court while considering the fact that the writ petition No. 2836 of 2003 was filed before this Court on 07.09.2003 and the same was disposed of by this Court on 30.09.2010 with liberty to file an appeal and thereafter immediately the instant second appeal was filed on 20.10.2010 as such he is entitled to get benefit of section 14 of the Indian Limitation Act, considering these legal positions, this Court has condoned the delay in filing the appeal and the same was admitted on the substantial question of law as stated above.

12. Now only one substantial question of law has to be determined by this Court.

13. The appellant has filed first appeal before the learned District Judge Koriya which was transferred to Additional District Judge Baikunthpur and also filed the application under section 5 of the Limitation Act as the appeal was barred by 9 days of delay but the First Appellate Court has taken hyper technical view and rejected the application on the ground that the appellant has filed an application regarding he was ill from 12.11.2002 to 23.11.2002, but in his application he has not stated that as to why he did not apply for the certified copy of order from 9.08.2002 to 20.08.2002 and after receiving the certified copy of order he could not file appeal till 11.11.2002, as such there is no bonafide or sufficient reason for condoning the delay. The learned First Appellate Court has also recorded its finding that the medical certificate does not reflect that the appellant was suffering from which disability and he was

unable to meet his counsel and has rejected the application as well as appeal also.

14. I have learned counsel for the parties and perused the records of the Courts below with utmost satisfaction.

15. Learned First Appellate Court has adopted hyper technical approach in dismissing the application for condonation of delay as well as the appeal. The First Appellate Court should have considered that the primary function of a court is to adjudicate the dispute between the parties on its own merits and to advance substantial justice. It is pertinent to mention here that, the rule of limitation is 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 object of providing a legal remedy is to repair the damage caused by reason of legal injury as such learned First appellate Court should have condoned the delay of 11 days in filing the appeal. But the First Appellate Court while rejecting the application for condonation of delay has sought explanation for each day's delay and why the First Appellate Court should have not asked for explanation for every hour and second. Explanation of each day delay has been deprecated by the Hon'ble Supreme Court in the matter of Collector Land Acquisition vs Mst. Katiji & Ors reported in 1987 (2) SCC 107, this judgment of Hon'ble Supreme Court has also been considered by the Hon'ble Supreme Court in the matter of Isha Bhattacharjee vs. Managing Committe, Gaghunathpur Nafar Academy and other reported in (2013) 12 SCC 649, Hon'ble Supreme Court has held as under;

9. In all these applications, the respondents claimed that they acquired knowledge of the decree passed by the Trial Court on various dates in August/ September 2018. It was submitted that when notices were received from the Executing Court to the effect that the decrees passed against the respondents had been put to execution that they came to know for the first time about existence of the said decrees, whereupon they applied for certified copies and upon receiving such certified copies, they immediately preferred appeals before the Appellate Court along with applications for condonation of delay in October, 2018. A perusal of the applications for condonation of delay filed in the revisional applications shows that similar reasons have been put forth on behalf of the respondents. It has been contended that the respondents are poor and illiterate persons having no KHUNTE cra19.19+5.odt knowledge of legal complications and further that their belief and faith in the applicants herein

had caused them to suffer such a fate. The dates pertaining to the receipt of notices from the Executing Court, applications for certified copies and receipt thereof have been stated in the applications, in order to explain the delay.

10. The said applications were opposed on behalf of the applicants herein by stating that the reasons given in the applications for condonation of delay were wholly unsustainable and that the respondents and/or their Advocate had continuously attended proceedings before the Trial Court till pronouncement of judgments and that therefore, it was unbelievable that the respondents came to know about the said decrees only in August/September 2018.

16. The manner in which learned First Appellant Court has dismissed the application is also against the law laid down by Hon'ble Supreme Court in the matter of N. Balakrishnan vs. M Krishnamurthy reported in (1998) 7 SCC 123, in para 12 , 13 and 14 Hon'ble Supreme Court has held as under;

12. A count knows that refusal to condone delay would result in 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 v. Kuntal Kumar and State of W.B. v. Administrator, Howarh Municipality.

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 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 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.

14. In this case, explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs fifty thousand from the

delinquent-advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that the appellant shall pay a sum of rupees ten thousand to the respondent (or deposit it in this Court) within one month from this date.

17. From the above stated legal position, it is quite clear vivid that the First Appellate Court has not examined the sufficient cause in a liberal sense but has taken hyper technical view ignoring well settled legal position of law and thus committed illegality in deciding the case, therefore, substantial question of law framed by this Court is decided in favour of the appellant and the judgment and decree passed by the First Appellate Court is set aside. The learned first appellate Court is directed to decide the appeal on its own merit within a period of six months from the date of receipt of copy of judgment and decree passed by this Court after noticing the appellant and the defendants. The record of Courts below be sent back forthwith. The matter is remanded back to the First Appellate Court for deciding the appeal afresh in accordance with the law.