Santosh Kumar vs Shatruhan Kumar And Ors
2022 Latest Caselaw 1422 Chatt

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                                                                   NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                          SA No. 52 of 2014
    Santosh Kumar S/o Late Motilal Aged About 45 Years R/o Ketha,
     Tah. Janjgir, Distt. Janjgir-Champa C.G.
                                                           ---- Appellant
                                 Versus
   1. Shatruhan Kumar S/o Motilal Aged About 55 Years R/o Ketha,
      Tah. Janjgir, Distt. Janjgir-Champa C.G.
   2. Anushuiya Bai D/o Late Motilal Aged About 38 Years R/o
      Laharshi Kharod, Tah. Pamgarh, Distt. Janjgir-Champa C.G.
   3. Nira Bai D/o Motilal Aged About 35 Years R/o Maldakala, Tah.
      Jaijaipur, Distt. Janjgir-Champa C.G.
   4. State Of Chhattisgarh D/o Thru- Collector, Janjgir-Champa C.G.
                                                      ---- Respondents

For Appellant : Shri Malay Shrivastava, Advocate For Respondent No. 1: Shri R.K. Tiwari, Advocate For State : Shri Ravi Maheshwari, Panel Lawyer

Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board

21.03.2022

1. This is appellant/defendant No.1's Second Appeal. Respondent No.1-plaintiff had filed a suit for declaration of title, permanent injunction, partition and separate possession of the properties mentioned in Schedule A of the plaint which was allowed vide judgment and decree dated 13.02.2012. Aggrieved with the judgment and decree the present appellant/defendant No.1 filed First Appeal and the First Appeal was dismissed on limitation. Against the said judgment the defendant No.1 has again preferred the present Second Appeal.

2. The second appeal was admitted on 15.06.2016 on following substantial question of law:

"Whether the first appellate Court is justified in dismissing the first appeal by rejecting the application under Section

5 of the Limitation Act by recording a perverse finding?

3. Brief facts as reflected from the plaint's averments are that the plaintiff filed a civil suit for declaration of title, permanent injunction, partition and separate possession of the ancestral properties mentioned in Schedule-A of the plaint contending that the plaintiff has requested the defendants for partition of share in the suit property which was denied by them. This necessitated the plaintiff to file a suit for declaration of title, permanent injunction, partition and separate possession which was registered as Civil Suit No. 25-A of 2010 before Civil Judge, Class II, Jaijaipur, District - Janjgir-Champa. The defendants filed their written statement denying the allegation made in the plaint.

4. Learned trial Court after appreciating the evidence and materials on record allowed the civil suit partly by recording a finding that plaintiff and defendants each are entitled for ¼th share of total land of 14.96 acres. This judgment and decree was assailed before the learned District Janjgir-Champa on 09.07.2012 which was transferred to the learned Second Additional District Judge, Sakti. There was delay of 4½ months in filing the appeal.

5. Learned counsel for the appellant would submit that he had filed an application for condonation of delay in filing the appeal contending that he has bonafide and sufficient reason for not preferring the appeal within stipulated time prescribed under the statute. He had categorically stated in the application that he became ill after the judgment and decree was passed, he had also annexed certificate of the competent medical officer to substantiate his submission that he was not well which has caused delay in filing the appeal. The plaintiffs filed reply to the said application objecting the contention raised in the application and submitted that there is no bonafide and sufficient reason for condonation of delay, hence prayed for dismissal of the appeal.

6. The learned appellate Court after hearing the parties, has rejected the application for codonation of delay and also

dismissed the appeal being barred by limitation. This order has been assailed by the defendant No. 1 by preferring the present Second Appeal. The appeal has been admitted by this Court on substantial question of law as stated above.

7. Learned counsel for the appellant would submit that learned appellate Court has committed irregularity and illegality in dismissing the application for condonation of delay as he has shown bonafide and sufficient cause for not preferring the appeal within time.

8. On the other hand, learned counsel for respondent No. 1 would submit that there is no bonafide and sufficient reason for condoning the delay, therefore, the findings recorded by the learned first appellate Court are just and proper and do not call for any interference and prayed that the second appeal may kindly be dismissed.

9. I have heard learned counsel for the parties with utmost satisfaction and perused the record.

10. It is not in the dispute that the appeal was preferred at a belated stage after about 4½ months. It is well settled legal position of law that the litigant who is not vigilant toward its legal remedy, then he may be ousted for consideration of law, but considering the facts and materials of the case, considering the fact that the appellant was suffering from illness and a certificate to this effect was also filed, the reasons assigned by the appellant seems to be just and sufficient for condoning the delay. The learned appellate Court has committed illegality in not condoning the delay in filing the appeal in the facts of the present case. As such, the judgment and decree passed by the learned appellate Court suffers from illegality and is against the law laid down by the Hon'ble Supreme Court in various cases.

11. In case of N. Balakrishnan V. M. Krishnamurthy 1, it has been held by the Supreme Court that the sufficient cause has to be construed liberally especially when the delay is not deliberate and malafide. Relevant paragraphs of the judgment are 1 (1998) 7 SCC 123

extracted below:

"11. Rules 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time newer causes would sprout up necessitation 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. The 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 litigatin). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilaory tactics but seek their remedy promptly. The idea is that every legal remedy must be kep alive for a legislatively fixed period of time.

12. A court 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 Vs. Kuntal Kumari [AIR 1969 Sc 575] and State of West Bengal Vs. S.A. No.331 of 2013 The Administrator, Howrah Municipality [ AIR 1972 SC 749]."

12. The Supreme Court in the case of Esha Bhattacharjee V. Managing Committee of Raghunathpur Nafar Academy and others 2 has laid down the principles for deciding application for condonation of delay. Para 21 of the judgment states as under:- "21. From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms sufficient cause should be understood in 2 2JT 2013 (2) SC 450

their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant S.A. No.331 of 2013 not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully

scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."

13. Learned first appellate Court has further committed an error of law in holding that appellant has not explained day to day delay while filing the application for condonation of delay. This reason for rejection of application for condonation of delay is against the law laid down by the Hon'ble Supreme Court in case of Collector, Land Acquisition, Anant Nag vs. Mst. Katiji 3 where Hon'ble Supreme Court has observed as under:-

"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 pedantic 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 fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

3 AIR 1987 SC 1353

6. It must be grasped that judiciary is respected not 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."

14. Considering the above stated law on the subject and considering the fact that appellant has explained delay in not preferring the appeal within stipulated time period, I am of the opinion that the second appeal deserves to be allowed and substantial question of law deserves to be answered in favour of the appellant.

15. Accordingly, the second appeal is allowed. The order dated 18.11.2013 passed by the learned appellate Court is set aside. The matter is remanded back to the first appellate Court to decide the appeal on merits without insisting on the issue of delay as this Court has condoned the delay in preferring the appeal. Learned appellate Court is directed to decide the appeal within an outer limit of 6 months from the date of receipt of records and certified copy of order of the second appeal.

16. Accordingly, the second appeal is finally disposed off. A decree be drawn up accordingly.

17. The parties are directed to appear before the first appellate Court on 5th May, 2022 and further dates would be given to them by the learned appellate Court for deciding the appeal on merits without insisting for condonation of delay as this Court has found that appellant has shown sufficient and bonafide reason for not preferring the appeal within limitation prescribed in the statute. Record be sent back forthwith.

Sd-

(Narendra Kumar Vyas) Judge kishore