Jharkhand High Court
Sita Orain vs Chamru Oraon on 29 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 11 of 2021
1. Sita Orain
2. Ram Dayal Oraon ..... Petitioners
Versus
1. Chamru Oraon
2. Deputy commissioner Gumla .... .... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mr. Shashank Shekhar, Advocate
For the Opp. Party :
03 / 29.11.2021 The present civil miscellaneous petition has been filed
under Section 151 of the CPC for restoration of S.A. No.491 of
2003 which has been dismissed for default for non-compliance of
order dated on 28.10.2004 passed by co-ordinate Bench of this
Court.
Petitioners are appellant/defendants who have preferred the
instant appeal against the order of the Court of appeal which
reversed the Judgment of the Trial Court and decreed the suit in
favour of the Plaintiff. It is further submitted that there was a
direction by the court for removing the defect by depositing deficit
court fee which was not complied and consequently the second
appeal stood dismissed.
Regarding the inordinate delay of about 16 years in filing the
second appeal, it is further submitted that after filing the instant
second appeal the then counsel informed the petitioners that he
would inform the petitioners when the matter comes for hearing.
The matter was listed on 28.09.2004 under the heading for orders
with defect in which the then counsel sought four weeks time to
remove the defect. In view of non-compliance of the order the
appeal was dismissed. The appellant could know about the
dismissal of appeal only in November, 2020 and after obtaining the
certified copy of order the present petition has been filed for
restoration of second appeal.
It is further submitted that petitioners were rustic villagers.
Reliance has been placed on following authorities-
1. AIR 1981 SC 1400 paras 2 and 3
2. AIR 1987 Supreme Court 1353, para-3
3. 2008 (3) AIR Jhar. R738, paras 7,8 and 9
The instant petition for restoration of the second appeal
has been filed after an inordinate delay of more than 16 years on
the plea that the conducting lawyer had not informed the petitioner.
It is settled law that on the point of condonation of delay a liberal
approach should be taken, so that the matters can be heard on
merit, provided there is some plausible and cogent explanation for
the reason that prevented the party from approaching the court. It
does not mean that the salutary provisions of the Limitation Act
has to be given a complete go by. It was imperative on the part of
the petitioner to offer some rationale ground which could be said to
be sufficient because for not filing the condonation petition in
time. It has been held in (2018) 12 SCC 527 Cheddi Lal Yadav Vs
Hari Kishore Yadav that actions must be taken within reasonable
time, where no period of limitation is a specified. Time must be
reckoned reasonably not only in order to preserve the rights and
advantages which party possesses but equally to protect each party
from losses he ought not to suffer.
The facts of the authorities relied upon by the
appellants/petitioners are different and will not apply to the present
case. The main point for consideration is whether the petitioner has
offered a reasonable reason for delay in preferring the restoration
petition. I am of the considered view that it is beyond
comprehension that it took more than 16 years for the petitioners to
know that their appeal had been dismissed. The plea that appellants
are rustic villagers and the conducting lawyer had not informed
them about the dismissal of appeal, does not inspire confidence. It
cannot be lost sight that the respondents too come from the same
social background and to accept this plea of the petitioner will
amount to render the Limitation Act redundant. It will come as a
handy excuse in all cases that the petitioner had not been informed
by the counsel and they were poor rustic villagers.
Under the circumstance, I find that the petitioner has failed
to offer sufficient cause for delay in filing restoration application.
In the result Civil Miscellaneous Petition stands dismissed.
Consequently, IA if any stands disposed of.
(GAUTAM KUMAR CHOUDHARY, J.)
Tarun
