Phoolchand Vaishya vs Rajkumar Vaishya
2022 Latest Caselaw 3283 Chatt

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                                                              NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                        SA No. 403 of 2019

     Phoolchand Vaishya, S/o Late Devideen Vaishya, Aged About 65
     Years, Pendra, Tahsil- Pendraroad, Former R/o Currently
     Residing at Geetanjali City, Bilaspur, District- Bilaspur (C.G.)
                                                       ---- Appellant
                             Versus

1.   Rajkumar Vaishya, S/o Late Devideen Vaishya, Aged About 43
     Years, R/o Pendra, Tahsil- Pendraroad, Bilaspur, District-
     Bilaspur (C.G.)
2.   Narayan Prasad Vaishya, S/o Late Devideen Vaishya, Aged
     About 72 Years, R/o H.N.-155/3A/Rachana/Vaishali, Ghaziabad
     (U.P.) Pin- 201010
3.   Narendra Kumar @ Keshav Vaishya, S/o Late Devideen
     Vaishya, Aged About 69 Years, R/o-128, Royal Bungalow, City
     Sukalia, Indore, Tahsil & District- Indore (M.P.) Pin- 452007.
4.   Dilip Kumar Vaishya, S/o Late Devideen Vaishya, Aged About 57
     Years, R/o B-602, K.M. Apartment, 12/12, Dwarika, Delhi, Tahsil
     & District- Delhi, New Delhi, Pin- 110078.
5.   State of Chhattisgarh, Through Collector, Bilaspur, District-
     Bilaspur (C.G.)
6.   Deleted (Babulal) as per Hon'ble Court's order dated 09.03.2022.
7.   Bhola (Dead), S/o Bharat, Aged About 73 Years, (then)
     represented through heirs-
     (i) Amar Singh, S/o Bhola, Aged About 72 Years, R/o Village-
     Amarpur (Majhaulipara) Tahsil & District- Bilaspur (C.G.)
     (ii) Dharam Singh, R/o Village- Amarpur-Majhaulipara, Revenue
     District- Gourella-Pendra Marwahi (C.G.)
     (a) Kushal Singh, Aged About 36 Years, R/o Village- Amarpur
     (Majhaulipara) Tahsil & District- Bilaspur (C.G.)
     (b) Ishwar Singh, Aged About 34 Years, R/o Village- Amarpur
     (Majhaulipara) Tahsil & District- Bilaspur (C.G.)
     (c) Top Singh, Aged About 18 Years, Village- Amarpur
     (Majhaulipara) Tahsil & District- Bilaspur (C.G.)
     (iii) Lakhan Singh, S/o Bhola, Aged About 57 Years, R/o Village-
     Amarpur (Majhaulipara), Tahsil & District- Bilaspur (C.G.)
     (iv) Balram Singh, S/o Bhola, Aged About 54 Years, R/o Village-
     Amarpur (Majhaulipara), Tahsil & District- Bilaspur (C.G.)
                                                   ---- Respondents

For Appellant : Mr. Siddharth Dubey, Advocate. For Respondent No. 1 : Mr. Surfaraj Khan & Mr. Rishi Sahu, Advocates.

For State/Respondent No. 5 : Ms. Chitendra Singh, P.L.

Hon'ble Shri Justice Narendra Kumar Vyas

Judgment on Board

06.05.2022

1. Heard on admission.

2. It is pertinent to mention here that the notice issued by this Court to respondents No. 2, 3, 5, 7(i), 7(iii), 7(iv), 7.2 (ii)(a), 7.2(b), 7.2(c) has been served. The notice issued to respondent No. 4 is refused by him, therefore, it is held that the notice has been duly served upon him. Respondent No. 6, 7(ii) & 8 died, therefore, name of respondent No. 6 & 8 has been deleted. Name of respondent No. 9 is also deleted in view of the order passed by this Court on 17.06.2019. Respondent No. 7.2 (ii) died therefore, their legal representatives 7.2(ii)(a), 7.2(ii)(b) & 7.2(ii)(c) have been brought on record. This Court vide its order dated 09.03.2022 directed for issuance of notice to proposed respondents i.e. legal representatives of respondent No. 7 (ii) namely Kushal Singh, Ishwar Singh & Top Singh by ordinary course as well by registered mode, which has been served to them, but they have chosen not to appear before this Court, as such, they are being proceeded exparte before this Court.

3. Learned counsel for the appellant would submit that the judgment and decree dated 28.03.2018 passed by the learned Civil Judge Class-I, Pendraroad, District- Bilaspur in Civil Suit No. 5A/2007 has been dismissed. Against that, first appeal was filed before the learned First Appellate Court i.e. Additional District Judge, Pendra Road, District- Bilaspur (C.G.) who vide its judgment dated 21.01.2019 has dismissed the appeal by

recording a finding that no bonafide reason has been assigned for condonation of delay of 45 days in filing the appeal. Accordingly, the application filed under Section 5 of the Limitation Act, 1963 as well as the first appeal have been dismissed.

4. The appeal is arguable and admitted for hearing on following substantial question of law:-

"Whether the First Appellate Court was justified in dismissing the appeal filed by the plaintiff on the ground of delay and latches?"

5. With the consent of the parties, the instant second appeal is being heard finally.

6. The brief facts as reflected from the plaint averment are that the plaintiff has filed Civil Suit No. 05A/2007 before Civil Judge Class-I, Pendraroad, District- Bilaspur for declaration, possession and permanent injunction for the suit property situated at Village- Penda, Ward No. 13, Patwari Halka No. 26, Revenue Circle- Pendra, Tahsil- Pendraroad, District- Bilaspur bearing Khasra No. 2838, 2577/01, 264/02 area admeasuring 3.46, 0.27, 1.88 respectively & land 2244 sq.ft from Khasra No. 2498 & 2560 sq.ft. from Khasra No. 2496-2497, which are the ancestral property as per the revenue record. The trial Court vide order dated 28.03.2018 has dismissed the suit filed by the plaintiff by recording a finding that the plaintiff has failed to prove his case. Against that, the plaintiff has filed first appeal before the First Appellate Court. The appeal filed by the plaintiff was delayed by 45 days, as such, the appellant has also filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay mainly contending that the plaintiff was suffering from Hyper Tension, Glaucoma & other physical infirmity, which has caused delay in filing the appeal. He has also enclosed medical certificate issued by Medical Officer, District Government Hospital Bilaspur and has prayed for condonation of delay in filing the appeal. The said application was supported by an affidavit of the appellant.

7. Learned First Appellate Court vide its order dated 21.01.2019 has dismissed the application for condonation of delay as well as the first appeal by recording a finding that the appellant has submitted medical certificate issued on 04.12.2018, but prior to this, no medical certificate has been produced, therefore, he has filed the document just to overcome with the delay caused in filing the appeal, as such, it is not a bonafide and sufficient reason to condone the delay. Accordingly, the application for condonation of delay and the appeal has been dismissed.

8. Learned counsel for the appellant/plaintiff would submit that the reason assigned by the plaintiff that the plaintiff is suffering from Hyper Tension, Glaucoma and other physical infirmity is bonafide and sufficient reason and no reason has been assigned by the First Appellate Court to disbelieve the medical certificate issued by Medical Officer, District Government Hospital, Bilaspur. He would further submit that the reason assigned by the First Appellate Court rejecting the first appeal filed by the plaintiff is contrary to the well settled legal position that sufficient and bonafide reason in delayed filing the appeal should be considered sympathetically and should have adopted liberal approach by condoning the delay which is not inordinate delay. In this case, there was delay of only 45 days, therefore, the delay should have been condoned by the learned First Appellate Court, therefore, the substantial question of law framed by this Court may be answered in favour of the plaintiff and the instant second appeal may kindly be allowed.

9. On the other hand, learned counsel for respondent No. 1 would oppose the submission made by learned counsel for the appellant. He would further submit that the reason assigned by learned First Appellate Court while rejecting the application for condonation of delay on the count that no bonafide and sufficient reason has been assigned is legal, justified and does not warrant any interference by this Court. Hence, it is prayed that the instant appeal may kindly be dismissed.

10. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.

11. The learned trial Court while rejecting the application for condonation of delay has not taken into consideration that the application was supported by certificate of the doctor of District Government Hospital, Bilaspur which specifically said the appellant- Phoolchand Vaishya was under his treatment since 01.10.2018 to 04.12.2018 for the illness and he was advised for medical treatment and rest for this period. It means, the appellant was undergone treatment for this period and thereafter, a certificate dated 04.12.2018 was issued by the doctor.

12. Now coming to the facts of the case, the order was passed by the trial Court on 28.03.2018 and copy was delivered to the appellant on 20.09.2018, therefore, the period from 30.03.2018 to 20.09.2018 would be excluded from computing the limitation. The limitation will start from 21.09.2018 and the last date for filing of the appeal was 20.10.2018 and the appeal was filed on 05.12.2018, thus, there was only 45 days delay in filing the appeal. The appellant was on medical contingency from 01.10.2018 to 04.12.2018, thus, there was sufficient reason for condoning the delay. The learned First Appellate Court has adopted hyper technical view in dismissing the application for condonation of delay ignoring the well settled position of law by Hon'ble the Supreme Court.

13. It is well settled legal position that Section 5 of the Limitation Act is not applicable in filing of the suit. Hon'ble the Supreme Court in Sunil Kumar Maity Vs. State Bank of India and another 1, has held at paragraph 12, which is extracted below:-

"12. The National Commission therefore has grossly erred in observing in the impugned order that the appellant-complainant would be at liberty to seek remedy in the competent Civil Court and that if he chooses to bring an action in a Civil

1 2022 SCC OnLine SC 77

Court, he is free to file an application under Section 5 of the Limitation Act, 1963, recording the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if action is brought by the complainant in a Civil Court. Such an observation/order passed by the National Commission is in utter ignorance of the provisions of the Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the institution of civil suit in the Civil Court. Be that as it may, the impugned order passed by the National Commission solely relying upon the suo-moto report called for from the respondent-bank during the pendency of the revision application, being highly erroneous, deserves to be set aside and is accordingly set aside. The order passed by the State Commission is restored. The appeal stands allowed accordingly."

14. It is well settled legal position that question of limitation may be question of law and fact. For determining the issue of limitation, the pleadings of the parties or evidence, have to be considered by the Court. In the present case in hand, the defendant was not given any opportunity to file written statement and the suit was dismissed merely on the pleadings of the plaintiff, on the application filed by the plaintiff under Section 5 of the Limitation Act. The procedure adopted by the trial Court is unknown to the practice and procedure for deciding civil suit as provided under various provisions of C.P.C. Thereafter, the appellate Court has further committed illegality in not considering the procedure prescribed under C.P.C. for deciding the suit and dismissing the appeal. It is incumbent on the part of the trial Court to give an opportunity to defendant to file written statement where he can raise all the question of limitation, jurisdictional issue with regard to maintainability of the suit or he can file written statement opposing the claim of the plaintiff, thereafter, the trial Court can frame issue and decide the suit after giving opportunities to parties to lead evidence, to place substantial material on record in support of their respective contention.

15. Hon'ble the Supreme Court in Salim D. Agboatwala & others Vs. Shamalji Oddhavji Thakkar & others2, has held as under:- 2 Civil Appeal No. 5641 of 2021 (Decided on 17.09.2021)

"13. As observed by this Court in P.V. Guru Raj Reddy vs. P. Neeradha Reddy And Others (2015) 8 SCC 331, the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11.

14. Again as pointed out by a three member bench of this Court in Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar [(2018)6 SCC 422], the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold."

16. In view of the above, considering the facts and circumstances of the case, this Court is of the view that the substantial question of law deserves to be answered in favour of the appellant/plaintiff and against the respondents. The instant appeal is liable to be and is hereby allowed by setting aside the judgment dated 21.01.2019 passed by Additional District Judge, Pendraroad, District- Bilaspur (C.G.) in Civil Appeal No. 58/2019 (Phoolchand Vaishya Vs. Rajkumar Vaishya & others).

17. Now, the matter is remanded back to the learned First Appellate Court for deciding the first appeal afresh on its own merits without insisting for condoning the delay as this Court has found that there is sufficient and bonafide reason for not preferring the appeal by the appellant within the time stipulated.

18. The parties are directed to appear before the First Appellate Court on 15th June, 2022 and the First Appellate Court is directed to make endeavour to decide the case within an outer limit of 9 months from the date of first appearance of the parties.

19. Registry is directed to send the records of the Courts below

forthwith.

20. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Arun