Jharkhand High Court
Sugandha Singh vs Dinesh Prasad Singh on 12 June, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 41 of 2024
1. Sugandha Singh
2. Pallavi Kumari Singh ... Appellants
-Versus-
Dinesh Prasad Singh ... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. Amit Kumar Das, Advocate
Mr. Shubham Mishra, Advocate
Mr. Kanishka Deo, Advocate
For the Respondent : Mr. Sumeet Gadodia, Advocate
Mr. Ritesh Kumar Gupta, Advocate
Mr. Prakhar Harit, Advocate
Mr. K. Hari, Advocate, Advocate
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06/12.06.2025 Heard Mr. Amit Kumar Das, learned counsel appearing for the
appellants and Mr. Sumeet Gadodia, learned counsel appearing for the
respondent.
2. This second appeal has been filed on 08.04.2024 and it is barred by
525 days.
3. Mr. Amit Kumar Das, learned counsel appearing for the appellants
submits that for condonation of delay of 525 days, I.A. No.10652 of 2024 has
been filed. He submits that the appellants have filed the instant second appeal
against the judgment and decree dated 23.12.2022 (decree signed on
05.01.2023) passed by the learned Principal District Judge, Garhwa in Civil
Appeal No.05 of 2020, whereby, the appeal filed by the respondent has been
allowed and the judgment and decree dated 04.02.2016 (decree signed on
23.02.2016) passed by the learned Civil Judge (Sr. Division) No.1, Garhwa in
Title Suit No.6 of 2014 has been reversed. He then submits that the judgment
has been passed ex-parte against the appellants by the learned first appellate
court without proper service of notice upon them. However, when it has come
to the knowledge of the appellants, they enquired about the matter decided
by the learned first appellate court and, thereafter contacted their lawyer and
obtained certified copy of the order on 12.04.2024 and after receipt of the
certified copy of the order, the same was discussed with the local counsel,
who advised the appellants to move before this Court. He submits that in this
background, the delay has occurred. He puts more emphasis on non-service
of notice upon the appellants herein. He submits that the courts are liberal in
condoning the delay if sufficent cause is shown. To buttress this argument,
he relied upon the judgment passed in the case of N. Balakrishnan v. M.
Krishnamurthy, reported in (1998) 7 SCC 123. Paragraphs 10, 11 and 12
of the said judgment read as under:
"10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice. Time
limit fixed for approaching the court in different situations in
not because on the expiry of such time a bad cause would
transform into a good cause.
11. Rule 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. Law of limitation fixes a life-span for
such legal remedy for the redress of the legal injury so
suffered. Time is precious and the wasted time would never
revisit. During efflux of time newer causes would sprout up
necessitating 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. 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 litigation). Rules of
limitation are not meant to destroy the right of the parties.
They are meant to see that parties do not resort to dilatory
tactics but seek their remedy promptly. The idea is that every
legal remedy must be kept alive for a legislatively fixed period
of time.
12. A court knows that refusal to condone delay would
result 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. The
Administrator, Howrah Municipality,"
Relying on the above judgment, he submits that the case of the
appellants is fully covered as notice has not been served upon the appellants
and in view of that, the delay may kindly be condoned.
4. Mr. Das, learned counsel appearing for the appellants further submits
that it is a case of reversal and the appellants are having good case
of admitting the present second appeal. He further relied upon the judgment
passed in the case of Mool Chandra v. Union of India, reported in
2024 0 Supreme (SC) 636. Paragraphs 22 and 23 of the said judgment
read as under:
"22. If negligence can be attributed to the appellant, then
necessarily the delay which has not been condoned by the
Tribunal and affirmed by the High Court deserves to be
accepted. However, if no fault can be laid at the doors of the
appellant and cause shown is sufficient then we are of the
considered view that both the Tribunal and the High Court
were in error in not adopting a liberal approach or justice
oriented approach to condone the delay. This Court in
Municipal Council, Ahmednagar and Anr. Vs. Shah Hyder Beig
and Ors. 2000 (2) SCC 48 has held:
"6. Incidentally this point of delay and laches was also
raised before the High Court and on this score the High
Court relying upon the decision in Abhyankar case (N.L.
Abhyankar v. Union of India [(1995) 1 Mah LJ 503] )
observed that it is not an inflexible rule that whenever
there is delay, the Court must and necessarily refuse
to entertain the petition filed after a period of three
years or more which is the normal period of limitation
for filing a suit. The Bombay High Court in Abhyankar
case [(1995) 1 Mah LJ 503] stated that the question is
one of discretion to be followed in the facts and
circumstances of each case and further stated:
"The real test for sound exercise of discretion by the
High Court in this regard is not the physical running of
time as such but the test is whether by reason of delay,
there is such negligence on the part of the petitioner
so as to infer that he has given up his claim or where
the petitioner has moved the writ court, the rights of
the third parties have come into being which should
not be allowed to be disturbed unless there is
reasonable explanation for the delay."
23. Applying the aforesaid principles which we are in
complete agreement to the facts on hand and test the same
it would not detain us for too long to set aside the impugned
orders, in as much as the delay of 425 days in filing fresh O.A.
No.2066 of 2020 has been succinctly explained by the
appellant before the Tribunal, namely, it has been contended
that there was no intimation of withdrawal of the earlier OA
by his counsel and the order of withdrawal dated 10.08.2018
does not reflect that such withdrawal was based on any
memo duly signed by the appellant. Further, The High Court
has proceeded to confirm the order of the Tribunal on the
footing that penalty imposed on appellant is only a minor
penalty namely withholding of one increment without
cumulative effect, by completely ignoring the fact that in the
earlier round of litigation it had been clearly held that
punishment of dismissal imposed on the appellant was totally
disproportionate to the alleged act."
5. Mr. Das, learned counsel for the appellants also submits that the
appellants are purchaser of a piece of land by registered sale-deed and after
six years of purchase, the suit was instituted by the respondent only on the
ground that consideration amount was not paid, however, in the deed it has
been admitted that the consideration amount has been paid. He submits that
the learned appellate court in absence of proper notice, has been pleased to
allow the appeal ex-parte against the appellants herein.
6. Per contra, Mr. Sumeet Gadodia, learned counsel appearing for the sole
respondent opposed the prayer and submits that there is huge delay and day-
to-day explanations are not there and in view of that, the delay may not be
condoned. According to him, notice was already served and even paper
publication was also made. By way of referring paragraph 4 of the appellate
court's judgment, Mr. Gadodia submits that in that paragraph the court has
exclusively dealt with the mode of notice and the learned first appellate court
has noted in clear terms that the notices have been issued and even paper
publication has been made and in spite of that the appellants had not
appeared before the learned first appellate court. He submits that even before
the learned trial court, the appellants had not appeared, however, the suit
has been dismissed by the learned trial court.
7. In view of the above submissions of the learned counsel for the parties,
it is an admitted position that it has not been denied by the respondent herein
that the appellants have purchased a piece of land by way of registered sale-
deed and after six years of purchase, the said suit was instituted by the
respondent on the ground that consideration amount was not paid and the
suit was dismissed in spite of the fact that appellants herein had not appeared
in the suit. Thereafter, the appeal was preferred by the respondent herein,
which has been allowed ex-parte against the appellants herein.
8. From paragraph 4 of the judgment of the learned first appellate court,
it is not clear as to whether notice was sent to the present and correct address
of the appellants herein. Even it is not noted in the said judgment whether
service report of notice was received or not, however, the learned appellate
court has been pleased to pass the order of paper publication. In the order
of the learned first appellate court, there is no whisper regarding the
satisfaction of the learned court about non-service of notice upon the
appellants herein to the effect that they are avoiding service of notice despite
repeated efforts made by the court. Before dealing with application under
Order V Rule 20 of C.P.C., it was the duty of the learned trial court or first
appellate court to record its satisfaction that the appellants are avoiding
service of notice. The learned court did not bother to record the statement of
process server who had taken the summons for service on the appellants on
the address shown in the plaint.
9. The Hon'ble Supreme Court in the case of Smt. Yallawwa v. Smt.
Shantavva, reported in AIR 1997 SC 35 held that the trial court could not
have almost automatically granted the application for substituted service
without taking steps for serving the respondent by ordinary procedure as laid
down by Order V Rules 12, 15 and 17 of the C.P.C. It must be kept in view
that substituted service has to be restored as the last resort when the
defendant cannot be served in the ordinary way and the court is satisfied that
there is reason to believe that the defendant is keeping out of the way for the
purpose of avoiding service, or that for any other reason the summons cannot
be served in the ordinary way. Evidence has also not been led on the issue of
service of notice.
10. The proof by sufficient cause is a condition precedent for exercise of
the extraordinary discretion vested in the court. What counts is not the length
of the delay, but the sufficiency of the cause and shortness of the delay is
one of the circumstances to be taken into account in using the discretion.
What constitutes sufficient cause cannot be laid down by hard and fast rules.
This aspect of the matter has been considered by the Hon'ble Supreme Court
in two of the judgments relied by the learned counsel for the appellants.
11. The length of delay is no matter, acceptability of the explanation is the
only criterion. Sometimes delay of the shortest range may be uncondonable
due to want of acceptable explanation whereas in certain other cases delay
of very long range can be condoned as the explanation thereof is satisfactory.
There is no doubt that the limitation is said to be on public policy, however,
rules of limitation are not meant to destroy the right of parties. The only
purpose of limitation is to seen that the parties do not resort to dilatory tactics,
but seek their remedy promptly. A court knows that refusal to condone the
delay would result in foreclosing a suitor from putting forth his cause.
Presumption cannot be drawn in every case that delay in approaching the
court was deliberate. Further, the primary function of a court is to adjudicate
the dispute between the parties and to advance substantial justice.
12. In light of the above discussions and further considering the point of
notice, the Court finds that sufficient cause is made out to condone the delay
and, as such, the delay of 525 days in filing the present second appeal is,
hereby, condoned.
13. Accordingly, I.A. No.10652 of 2024 is disposed of.
14. Let this matter appear under Order XLI Rule 11 of the CPC.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
