Himachal Pradesh High Court
Decided On: 12Th September vs Tara Chand And Others on 12 September, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2024:HHC:8467
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.382 of 2024
Decided on: 12th September, 2024
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Pyare Chand .....Petitioner
Versus
Tara Chand and others .....Respondents
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Coram
Ms. Justice Jyotsna Rewal Dua
Whether approved for reporting?
For the Petitioner: Mr. Ajay Kumar Sharma, Advocate
vice Mr. Peeyush Verma, Advocate.
For the Respondents: Mr. K.D. Sood, Senior Advocate with
Mr. Vivek Thakur, Advocate.
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Jyotsna Rewal Dua, Judge
Petitioner was the plaintiff before the learned
Trial Court. He had instituted a civil suit for permanent
prohibitory injunction against the respondents seeking to
restrain them from interfering with his ownership and
possession over the suit land. The suit was decreed by the
learned Trial Court on 30.09.2021.
2. The respondents filed an appeal before the
learned First Appellate Court. The appeal was barred by
461 days. An application under Section 5 of the Limitation
__________________
Whether reporters of print and electronic media may be allowed to see the order? Yes
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Act read with Order 43 Rule 3-A of the Civil Procedure Code
(CPC) was moved by the respondents seeking condonation
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of delay in filing the appeal. The application was allowed by
the learned First Appellate Court on 03.06.2024. Petitioner
feels aggrieved against this order and has invoked the
jurisdiction of this Court under Article 227 of the
Constitution of India.
3. Learned counsel for the petitioner submits that
no cogent reasons were given by the respondents for
condoning the delay in institution of the appeal. Therefore,
the application moved by the respondents under Section 5
of the Limitation Act ought to have been dismissed.
Learned Senior Counsel for the respondents
defended the impugned order. The respondents in their
reply filed to the petition have submitted that they were not
present when the judgment and decree was announced.
They were not aware about the exact decision rendered in
the case. It was only when the execution petition was filed
by the petitioner and they received summons thereof that
they became aware of the passing of judgment and decree
against them on 30.09.2021. Immediately thereafter, they
took steps for instituting the appeal. It has also been
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submitted that the respondents have good case on merits in
their first appeal. That the petitioner in his suit had not
even claimed the relief of possession of the abadi by
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demolition of structure constructed by the respondents,
which relief had been granted to him. Even the sale deed,
Ext. PW-2/A, had not been proved. The matter had been
compromised between the parties previously in terms of
compromise deed dated 21.05.2012 (Ext. PW-1/D). These
are some of the aspects, which escaped notice of the
learned Trial Court while decreeing the suit in favour of the
petitioner.
4. In Pathapati Subba Reddy (Died) by L.Rs. and
Others vs. Special Deputy Collector (LA)1, following
principles of law of limitation were culled out by the Hon'ble
Apex Court:-
"26. On a harmonious consideration of the provisions
of the law, as aforesaid, and the law laid down by this
Court, it is evident that:
(i) Law of limitation is based upon public policy that
there should be an end to litigation by forfeiting the
right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised
or availed of for a long time must come to an end or
cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be
construed differently, such as Section 3 has to be
construed in a strict sense whereas Section 5 has to be
construed liberally;
2023 SCC OnLine SC 513
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(iv) In order to advance substantial justice, though
liberal approach, justice-oriented approach or cause of
substantial justice may be kept in mind but the same
cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to
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condone the delay if sufficient cause had been
explained, but that exercise of power is discretionary in
nature and may not be exercised even if sufficient cause
is established for various factors such as, where there
is inordinate delay, negligence and want of due
diligence;
(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also entitled to
the same benefit if the court is not satisfied with the
cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be
considered in condoning the delay; and (viii) Delay
condonation application has to be decided on the
parameters laid down for condoning the delay and
condoning the delay for the reason that the conditions
have been imposed, tantamounts to disregarding the
statutory provision."
Hon'ble Apex Court in the above-extracted
principles has also held that in order to advance
substantial justice, though liberal, justice-oriented
approach and cause of substantial justice is required to be
kept in mind, however, the same cannot be used to defeat
the substantial law of limitation contained in Section 3 of
the Limitation Act. Section 3 has to be construed in a strict
sense, wherein Section 5 has to be construed liberally.
In the instant case, the respondents had filed
the appeal against the judgment and decree passed by the
learned Trial Court in favour of the petitioner. The First
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Appellate Court is the last Court of facts available to the
respondents. For the lapses on the part of the respondents,
learned First Appellate Court has imposed costs of
.
Rs.10,000/- upon them and exercised the discretion vested
in it in accordance with law in condoning the delay in
institution of the appeal by the respondents. In the given
facts of the case, justice-oriented and liberal approach was
rightfully exercised by the learned First Appellate Court.
Exercise of discretion by the learned First Appellate Court
under the impugned order in condoning the delay cannot
be said to be suffering from any illegality or material
irregularity, so as to warrant interference in exercise of
powers under Article 227 of the Constitution of India.
5. For the foregoing reasons, no interference is
called for in the impugned order dated 03.06.2024 passed
by the learned First Appellate Court. The instant petition,
therefore, lacks merit and is accordingly dismissed
alongwith pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
September 12, 2024 Judge
Mukesh
