Shri Abdul Saleem vs Syed Ahmad Ali
2023 Latest Caselaw 1147 MP

                             1           S.A. No.494/2022



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 19th OF JANUARY, 2023
              SECOND APPEAL No. 494 of 2022
BETWEEN:-

1.   SHRI ABDUL SALEEM S/O LATE SHRI
     ABDUL AJEEZ, AGED ABOUT 59
     YEARS, R/O HOUNSE NO.4, NAJAR BAG
     GALI, IQBAL MAIDAN, BHOPAL
     (MADHYA PRADESH) - 462021



2.   SMT. TANVEER JAHAN D/O LATE SHRI
     ABDUL AJEEZ KHAN, AGED ABOUT 64
     YEARS, R/O HOUSE NO.04, NAJAR BAG
     GALI,   IQBAL  MAIDAN     BHOPAL
     (MADHYA PRADESH) - 462021



3.   SMT. NAHID W/O LATE SHRI ABDUL
     KHALID KHAN, AGED ABOUT 54
     YEARS, D/O SHRI ABDUL AJEEZ R/O
     HOUSE NO.04, NAJAR BAG GALI,
     IQBAL MAIDAN BHOPAL (MADHYA
     PRADESH) - 462021



4.   SMT. FARHAN D/O SHRI ABDUL AJEEZ
     KHAN, AGED ABOUT 49 YEARS, R/O
     HOUSE NO.04, NAJAR BAG GALI,
     IQBAL MAIDAN BHOPAL (MADHYA
     PRADESH) - 462021



5.   SMT. AFROZ PARVEEN D/O LATE SHRI
     ABDUL AJEEZ, AGED ABOUT 69
     YEARS, R/O KAMLA PARK, BHOPAL,
     (MADHYA PRADESH) - 462021
                                   2                  S.A. No.494/2022



6.    SMT. REHANA W/O LATE SHRI ABDUL
      HAFEEZ KHAN, AGED ABOUT 62
      YEARS, D/O LATE SHRI ABDUL
      HAFEEZ KHAN R/O KUMHAARPURA,
      PEERGATE,      BHOPAL  (MADHYA
      PRADESH) - 462021



7.    SMT. SHAGUFTA W/O MOHD. ISMAIL,
      AGED      ABOUT    44    YEARS,
      OCCUPATION: NILL R/O BAIRPURA,
      KAMLA PARK, BHOPAL (MADHYA
      PRADESH) - 462021



                                                     .....APPELLANTS
(BY SHRI R.K. SANGHI - ADVOCATE)

AND

      SYED AHMAD ALI S/O LATE SYED
      MOHD. ALI, AGED ABOUT 68 YEARS,
      OCCUPATION: PAN SHOP R/O HOUSE
      NO.17, BAGH MUNSHI HUSSAIN KHAN,
      SHAHJAHANABAD BHOPAL (MADHYA
      PRADESH)



                                                    .....RESPONDENT
(BY SHRI ISHTEYAQ HUSAIN - ADVOCATE)
      This appeal coming on for hearing this day, the court passed the

following:

                             JUDGMENT

This appeal being arguable is admitted for final hearing on the following substantial question of law:

"Whether the First Appellate Court erred in law in not condoning the delay of 117 days in filing the civil appeal?"

2. Since the respondent is represented by his counsel, therefore, the appeal is heard finally.

3. The facts of the case are that the respondent had filed a civil suit seeking permanent injunction against the appellants in respect of commercial shop situated at Annpurna Bhawan, Sultania Road, Bhopal admeasuring 16x12 sq.ft. and a room constructed on corridor in front of the such shop.

4. The case of the plaintiff/respondent is that the appellants be injuncted from dispossessing him from the suit premises except in due process of law. The suit was decreed by judgment and decree dated 04.12.2018 passed by Sixth Civil Judge Class-II, Bhopal in Regular Civil Suit No.1001-A/2014.

5. Being aggrieved by the judgment and decree passed by the trial Court, the appellants preferred a Regular Civil Appeal on 30.04.2019 alongwith an application under Section 5 of Limitation Act. It was the contention of the appellants that the appellant Nos.2 and 4 are suffering from heart ailment. The appellant No.4 had already undergone angioplasty. There is a delay of 117 days which is not intentional. Since the appellant Nos.2 and 4 are heart patient and are required to move out from Bhopal for their treatment, therefore, the appeal could not be filed and accordingly, it was prayed that the delay in filing the appeal be condoned.

6. Notice of this application was issued and the respondent filed his reply submitting that the delay has occurred because of negligence of the appellants. No affidavit has been filed in support of the application filed under Section 5 of Limitation Act and therefore, on the said ground also the application is liable to be dismissed.

7. The First Appellate Court by the impugned order dated 27.01.2022 rejected the application for condonation of delay and as a consequence thereof also dismissed the appeal as barred by limitation.

8. It is submitted by the counsel for the appellants that it is well established principle of law that while deciding the question of limitation, the Court should adopt a lenient view and should not take a hypertechnical view so as to deprive a person from getting his case decided on merits. It is further submitted that the law of limitation is not meant to destroy the rights of the parties unless and until one of the parties is negligent and was sleeping over its right without any sufficient explanation. Even otherwise the appeal was filed with delay of only 117 day which cannot be said to be an exorbitant one. To buttress his contention, the counsel for the appellants has relied upon the judgment passed by the Supreme Court in the case of Bhivchandra Shankar More Vs. Balu Gangaram More and others reported in (2019) 6 SCC

387.

9. Per contra, the appeal is vehemently opposed by the counsel for the respondent. It is submitted that once an appeal is not filed within a period of limitation, then a valuable right accrues in favour of the opposite party and which cannot be taken away in a light manner unless and until a sufficient cause is shown by the appellant pointing out that he was unable to file an appeal for the reason beyond his control. To buttress his contention, the counsel for the respondent has relied upon the judgment passed by the Supreme Court in the case of Majji Sannemma alias Sanyasirao Vs. Reddy Sridevi and others reported in 2021 SCC Online SC 1260.

10. Considered the submissions made by the counsel for the parties.

11. The Supreme Court in the case of Bhivchandra Shankar More (supra) has held as under:

15. It is a fairly well-settled law that "sufficient cause" should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bona fides could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under: (SCC p. 696, para 6) "6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay."

16. Observing that the rules of limitation are not meant to destroy the rights of the parties, in N. Balakrishnan v. M. Krishnamurthy, this Court held as under: (SCC pp. 127- 28, para 11) "11. Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The

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 put to litigation). Rules of limitation are not meant to destroy the rights 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."

17. As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.

12. Similarly, the Supreme Court in the case of Majji Sannemma alias Sanyasirao (supra) has held as under:

17. In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:--

In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and

discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."

18. In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.

19. In the case of Pundlik Jalam Patil (supra), it is observed as under:--

"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing

oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

20. In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.

21. In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".

13. In the case of Majji Sannemma alias Sanyasirao (supra), the appeal was filed with a delay of 1011 days, therefore, there was an exorbitant delay in filing the appeal. In the case of R.K. Ramchandran Vs. State of Kerala reported in (1997) 7 SCC 556, the delay was of 565 days. Therefore, it is clear that when there is an exorbitant delay, then

the burden heavily lies on the appellant to explain the reasons for which he could not prefer an appeal. In other words, if an appellant was sleeping over his rights without any sufficient cause, then he cannot take away the valuable rights of the successful party by making an attempt to open a stale case with the help of an application under Section 5 of Limitation Act.

14. However, the facts of the present case are distinguishable. In the present case, the delay is only of 117 days. Two of the appellants were suffering from heart ailment. It is true that there are as many as seven appellants and the counsel for the respondent is right in making a submission that only one appellant was required to file an appeal alongwith the Vakalatnama of the other appellants but this Court cannot lose sight of the fact that all the appellants are having their different families and residing separately may be in the same city, but may be required to contribute equally for filing an appeal. A person, who is already suffering from heart ailment, may not be having sufficient funds to immediately contribute. Further the availability of the person cannot be presumed as sometimes he may be required to immediately go for his treatment. Although the aforesaid observations cannot be applied to each and every case but looking to a short period of limitation, the various practical aspects cannot be ignored although may not be pleaded specifically. By dismissing the appeal as barred by limitation, the Court should not destroy the valuable rights of the parties when the Court is unable to hold that they were grossly negligent in not prosecuting their cause. It is true that unending period of limitation would lead to uneding certainty for the successful party but as already pointed, the period of delay in the present appeal is only of 117 days.

15. Under these circumstances, this Court is of the considered opinion that the First Appellate Court should have considered the application by adopting a lenient view for the simple reason that explanation for delay of each and every days cannot be given a narrower meaning and it has to be interpreted in the light of the period of delay in filing an appeal. Furthermore, by not filing an appeal within the stipulated period, the appellants were not going to gain anything.

16. Under these circumstances, this Court is of the considered opinion that the appellate Court committed a material illegality by not allowing the application filed under Section 5 of Limitation Act.

17. Accordingly, the order dated 27.01.2022 passed by First Appellate Court in MJC Regular Civil Appeal No.4338/2022 is hereby set aside. 18 The application filed by the appellants under Section 5 of Limitation Act is hereby allowed and the delay in filing the appeal against the judgment passed by the trial Court is hereby condoned.

19. The parties are directed to appear before the appellate Court on 27th February, 2023 for further proceedings. The substantial question of law is answered in affirmative.

20. The appeal succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE

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VARSHA CHOURASIYA 2023.01.24 16:28:12 +05'30'