Jharkhand High Court
Smt. Khusila Devi @ Smt. Khushila ... vs Most. Sundari @ Most. Sundri & Ors on 23 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 33 of 2010
Smt. Khusila Devi @ Smt. Khushila Devi .... .... Appellants
Versus
Most. Sundari @ Most. Sundri & Ors. .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : Dr. H. Waris, Advocate
For the Respondents : M/s Rahul Kumar Gupta,
Jageshwar Mahto & H.K. Mahto, Advocates
C.A.V. ON 16.11.2021 PRONOUNCED ON 23 / 11 /2021
I.A. No. 613 of 2010
Heard the learned counsel appearing on behalf of the appellant in I.A.
No. 613 of 2010 which is filed under Section 5 of the Limitation Act for
condonation of delay of about four and half years in preferring the instant
appeal. It is submitted by the learned counsel that the appellant/plaintiff's
suit for declaration of valid right, title and interest in the suit property and
for confirmation of possession was decreed by the learned trial court. In
the appeal the judgment and decree was set aside and instant appeal has
been preferred against the order of a reversal passed by the court of First
Appeal.
It is further submitted that the appellant being an illiterate and rustic
woman could not take proper step for filing the second appeal. Being poor
countrywoman she approached the High Court Legal Services Committee
Ranchi for preferring the instant second appeal. By Reference No.
H.C.L.S.C./881 dated 04.11.2009 Shri (Dr.) H. Waris, Advocate,
Jharkhand High Court was appointed for the appellant to file the second
appeal against the judgment and decree dated 30th March, 2005. It is
further submitted by the learned counsel that since the appellate court's
judgment was not enclosed with the decree, therefore, he filed application
dated 10.11.2004 before the Secretary, H.C.L.S.C., Ranchi for supplying
the certified copy of the decree which he received on 11.02.2010. In these
circumstances, inordinate delay in filing the second appeal was caused
which was not intentional and since the appellant has strong case and,
therefore, for the ends of justice, the condonation petition be allowed, the
appeal be admitted and heard on merit.
Reliance in this context has been placed on the following authorities:
i. 1985 AIR SC 606 in which a petition under Section 5 of the
Limitation Act for condonation of delay of six years for filing a petition to
set aside the abatement on account of non-substitution of legal heirs was
allowed considering the poor background of the appellant.
ii. Md. MustakimVs. Md. Hafizuddin and others in Misc. Appeal No.
330 of 2004on the order passed by this Court on 26.03.2010 wherein,
the condonation of delay of ten years in filing the substitution petition was
allowed.
iii. 2002 (1) BLJR 794 (Ram Nath Sao Vs. Goberdhan Sao).
The petition for condonation of delay in filing the instant appeal has
been contested on behalf of the respondents by filing a counter affidavit. It
is submitted that there is absolutely no explanation for the delay of four
and half years in filing the second appeal save and except that the
appellant is an illiterate and rustic woman. It is not mentioned in the entire
petition as to when the appellant approached the High Court Legal Service
Committee and the reason, if any, for the delay in approaching it. It is
submitted that the delay is deliberate and vexatious.
Reliance has been placed on (2011) 4 SCC 363 (Lanka
Venkateswarlu Vs. State of Andhra Pradesh) wherein, the Hon'ble
Apex Court refused to condone the delay of 883 days in filing a petition to
set aside dismissal order and for condonation of 3703 days delay in
bringing on record LRs of deceased respondent. It was held by Their
Lordships that discretion under Section 5 of the Limitation Act should be
exercised systematically informed by reason.
It is undisputed fact that appellant is a poor rustic woman whose suit
was decreed and reversed in appeal who had to take to recourse to the
High Court Legal Service Committee to enable her to engage lawyer and
preferre the present appeal. Authorities relied upon by both sides relate to
relate to delay in filing the substitution petition and to bring on record the
legal heirs of the deceased party and, therefore, do not directly apply to
the facts and circumstances of the instant case which is about the delay in
filing the appeal.
It has been held in Manindra Land and Building Corpn. v. Bhutnath
Banerjee, (1964) 3 SCR 495 :
"Section 5 of the Limitation Act, on the other hand, empowers the court
to admit an application, to which its provisions are made applicable,
even when presented after the expiry of the specified period of
limitation if it is satisfied that the applicant had sufficient cause for not
presenting it within time. The court therefore had jurisdiction to
determine whether there was sufficient cause for the appellants not
making the application for the setting aside of the abatement of the suit
in time and, if so satisfied, to admit it."
Reliance has been place on Dr. Yashwantrao Bhaskarrao
Deshmukh Vs. Raghunath Kisan Saindane (2021 SAR (Civ) 1084)
which involved delay of 650 days in filing the appeal on the plea of lack
of knowledge of the decision in the appeal it has been held that the
litigant, who is contesting the matter, cannot be negligent and it would be
unfair to deprive the respondent, litigating for the last 17 years, of the
valuable right that has accrued to him. In this case the appellant has also
produced the documents including votors' list/ Adhar Card showing his
change of address from Amalner to Nasik. In view of the above, a lenient
view was taken in the condonation matter.
Under the aforesaid facts and circumstances I am of the considered
view that the appellant has made out sufficient cause for the condonation
of delay and a pedantic approach will be at the cost of substantive justice
and, therefore, the interlocutory application for condonation of delay is
allowed.
S. A. No. 33 of 2010
On the prayer of learned counsel for the appellant, list this case on
04.01.2022.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 23rd November, 2021
NAFR / AKT
