Jetaram vs Tari Devi
2021 Latest Caselaw 4706 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 159/2020

1. Jetaram S/o Shri Chunaram, Aged About 82 Years, R/o Heera Ki Dhani, Tehsil Bayatu, District Barmer.

2. Laxman Ram S/o Shri Jetaram, Aged About 54 Years, R/o Heera Ki Dhani, Tehsil Bayatu, District Barmer.

----Appellants Versus Tari Devi W/o Shri Bahadur Singh, R/o Heera Ki Dhani, Tehsil Bayatu, District Barmer.

                                                                   ----Respondent


For Appellant(s)           :     Mr. S.P.Sharma.
For Respondent(s)          :     Mr. Amit Mehta.



              HON'BLE MR. JUSTICE ARUN BHANSALI

                                  Judgment

19/02/2021

Office has reported the appeal to be barred by 2252 days.

This second appeal under Section 100 CPC is directed against

the judgment & decree dated 22/2/2014 passed by the Addl.

District Judge, Barmer, whereby, the appeal filed by the

respondent against the judgment & decree dated 19/9/2012

passed by the Addl. Civil Judge (Sr. Div.), Barmer was accepted

and the decree passed by the trial court was modified.

The suit was filed by the respondent for permanent

injunction, which came to be decreed by the trial court to the

extent of 45'x30' in terms of the Commissioner's report, wherein,

the portion was marked as A, B, C, D.

The plaintiff being not satisfied with the decree granted by

the trial court, filed first appeal.

(2 of 8) [CSA-159/2020]

The first appellate court allowed the appeal and granted

decree to the extent of boundaries indicated in para 1 of the

plaint.

The appellate decree was passed on 22/2/2014 and the

present appeal has been filed on 22/7/2020. Along with the

appeal, an application under Section 5 of the Limitation Act, 1963

has been filed seeking condonation of delay in filing the appeal

with the following averments:

"2. That as the decision of the first appeal was not conveyed to the appellants by the counsel before the learned trial court or was not received by the appellants. However, as soon as the appellants came to know recently about allowing the first appeal in favour of the plaintiff- respondent, the appellants rush to the office of the counsel and obtained the copy of the judgment and decree which is under challenge and rushed to Jodhpur and engaged the counsel at Jodhpur and filed the First Appeal. Thus, the appellants could not file the appeal before this Hon'ble Court within prescribed limitation and it is just and reasonable and sufficient cause that the appellants could not file the appeal within the prescribed limitation. The causing of delay in filing the appeal deserves to be condone in the interest of justice. The present appeal has been filed by committing delay.

3. That the appellants have no intention to approach this Hon'ble Court after completion of prescribed limitation. Due to reasons described above, bonafidely the appellants have approached this Hon'ble Court after the expiry of prescribed limitation."

(emphasis supplied)

On notice being issued, the respondent filed reply to the

application seeking condonation of delay, contesting the

averments made in the application. It was pointed out that the

appellants have taken contradictory stand, on the one hand they

have claimed that the decision of first appeal was not conveyed to

the appellants by the counsel and on the other hand they have

claimed that the decision of the first appeal was not received by

(3 of 8) [CSA-159/2020]

the appellants. It was also alleged that the application was laconic

and that after the decision by the Addl. District Judge, the

respondent raised the construction on the land in question and the

appellants were having knowledge of the judgment and decree

since 22/2/2014 and, as such, they are not entitled to seek

condonation of delay based on the submissions made in the

application.

On 21/1/2021, after arguing for sometime on the

application, time was prayed for on behalf of the appellants,

whereafter, an additional affidavit has been filed by the appellants

inter alia seeking to indicate fresh reasons for the delay in filing

the appeal, as apparently the averments made in the original

application were laconic.

It is claimed in the additional affidavit that the counsel

representing the appellants before the appellate court passed

away on 4/4/2016, he never informed the appellants about the

final decision rendered in the first appeal and as such the

appellants were not aware of the decision until a notice dated

27/1/2020 was received by the appellant no.2 from the office of

Panchayat Samiti. It is claimed that on receipt of the notice,

queries were made about passing of the order in appeal and the

notice was responded to. Thereafter, S.B.Civil Writ Petition No.

6873/2020 was filed before this Court, which was dismissed on

26/8/2020 as withdrawn with liberty to avail alternative remedy.

Whereafter, the present appeal was filed. It was again claimed

that the delay in filing the appeal was not intentional and that the

appellants have a strong case and, therefore, the delay be

condoned.

(4 of 8) [CSA-159/2020]

Learned counsel for the appellants - applicants reiterated the

submissions contained in the application filed under Section 5 of

the Limitation Act and the additional affidavit. It was submitted

that the judgment was delivered on 22/2/2014, counsel did not

inform about the outcome of the appeal, later on he died and the

appellants never came to know about the decision in the appeal

and it was only after receipt of notice in January, 2020 that they

became aware of passing of the decree and, therefore, they had

sufficient cause for not approaching the Court in time and,

consequently the delay deserves to be condoned.

Reliance was placed on K. Subbarayudu & ors. Special

Deputy Collector (Land Acquisition) : 207 DNJ (SC) 928, Devineni

Padmaja vs. Vundavalli Srinivasa Rao : 2012 DNJ (SC) 855,

Subramaniaswamy Temple, Ratnagiri vs. V. Kanna Gounder :

2008 DNJ (SC) 670 and Roshan Lal vs. Municipal Board, Amet :

2008 (2) DNJ (Raj.) 1087.

Learned counsel for the respondent vehemently opposed the

submissions. It was submitted that the appellants, only with a

view to somehow indicate sufficient reasons, have put the blame

on the lawyer in purportedly not informing the outcome of the

appeal, which claim is absolutely false.

Further submissions were made that the respondent has

specifically indicated in his reply that after passing of the

judgment in the year 2012, the respondent had raised

construction on the land in question and the appellants were well

aware of the judgment & decree dated 22/2/2014 since the

passing of the decree, however, in additional affidavit, there is no

(5 of 8) [CSA-159/2020]

response to the said specific averment and, therefore, the plea

raised on its face is absolutely incorrect.

Further submissions were made that even in response to the

notice issued by the Panchayat Samiti, again knowledge of

decision dated 22/2/2014 has been indicated and, therefore, the

plea raised in this regard has no substance. It was submitted that

the application under Section 5 of the Limitation Act being bereft

of any substance deserves to be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The appellate judgment was delivered on 22/2/2014 and the

present appeal has been filed on 22/7/2020 i.e. after a lapse of

over six years and the office has reported the same to be barred

by 2252 days.

The sum and substance of the application under Section 5 of

the Limitation Act and the additional affidavit is that the appellants

were not informed by the counsel about the decision dated

22/2/2014. The said plea raised apparently is specious, inasmuch

as the counsel, who was representing the appellants died on

4/4/2016 i.e. after more than two years. It is not indicated by the

appellants as to between 22/2/2014 and 4/4/2016 and thereafter

till January, 2020 whether they made any effort/inquiry to find out

the status of the appeal. It cannot be comprehended that a party

once entrusting a case to the counsel would not care to even try

to meet the counsel to find out the status of the case for over six

years and as such, apparently, said submission regarding counsel

not informing is without any basis.

(6 of 8) [CSA-159/2020]

A perusal of the original application filed under Section 5 of

the Limitation Act, contents whereof have been quoted

hereinbefore, indicates that a stock plea was raised that the

counsel did not inform about the outcome and as soon as the

appellants became aware of passing of the judgment by the

appellate court, they rushed to the office of counsel, obtained

copy of the judgment and rushed for filing the appeal. In fact, it is

not even indicated in the application filed initially that the counsel

had died in the year 2016 and it is only when the Court found that

the application was laconic, time was sought and additional

affidavit was filed, wherein, for the first time, it was indicated that

the counsel has died. In fact, the submission made in the initial

application is that the copy of the judgment was obtained from the

office of the counsel, which submission now appears to be per se

incorrect.

The standard practice in seeking condonation of delay by

putting the blame on the counsel allegedly not informing about the

outcome of the litigation, cannot be countenanced in each and

every case where the party, even if the allegation is true, chose

not to approach the counsel for six long years and as such,

besides the fact that the plea raised is apparently incorrect, in

view of the averments contained in the application filed initially

and the additional affidavit, the same cannot be accepted.

Further, as submitted by learned counsel for the respondent

the averments contained in reply to the notice also contain

indications of the appellants being aware of passing of the

judgment, wherein, it is claimed that the appellants have been

following the order of Addl.District Judge till filing of the reply.

(7 of 8) [CSA-159/2020]

The casualness in filing the additional affidavit and making

submissions before the Court is also reflected from the fact that

the writ petition was withdrawn on 26/8/2020 with liberty to avail

alternative remedy available under the law. However, the appeal

had already been filed on 22/7/2020 and, as such, apparently

instead of withdrawing the writ petition with liberty to 'avail

alternative remedy', the petition should have been withdrawn to

'pursue the alternative remedy' by indicating that the appeal had

already been filed.

Be that as it may, the ground raised in the application and

the additional affidavit seeking to falsely blame the counsel, in the

circumstances as noticed hereinbefore, cannot be said to be

sufficient reason so as to seek condonation of delay of over six

years in filing the appeal.

Reliance placed on the judgments in the case of K.

Subbarayudu (supra) and Devineni Padmaja (supra) have no

application to the facts of the present case, wherein, the Hon'ble

Supreme Court, though observed that 'sufficient cause' should

receive a liberal construction, did not rule to acknowledge

absolutely false averments. The judgments in the case of

Subramaniaswamy Temple (supra) and Roshan Lal (supra), which

have been cited to contend on merits of the appeal, are also of no

use as the appellants are first required to cross the hurdle of

inordinate delay in filing the appeal.

In view of the above discussion, as the appellants are guilty

of unexplained delay of over 06 years & laches and the reasons

indicated in the application seeking condonation of delay have

been found ex-facie incorrect, based on the contradictory plea

(8 of 8) [CSA-159/2020]

raised in the initial application and the additional affidavit, no case

for condonation of delay of over six years in filing the appeal is

made out.

The application seeking condonation of delay in filing the

appeal is, therefore, dismissed.

Consequently, the appeal is also dismissed as barred by

limitation.

(ARUN BHANSALI),J

11-baweja/-

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