Gopal vs Rameshchandra
2022 Latest Caselaw 513 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Second Appeal No. 38/2021

Gopal S/o Late Lilaji, Aged About 41 Years, By Caste Ghanchi, R/o Nitoda, Tehsil Pindwara, District Sirohi (Rajasthan).

----Appellant Versus

1. Rameshchandra S/o Heeraramji, By Caste Ghanchi, R/o Chhoti Nitoda, Tehsil Pindwara, District Sirohi (Rajasthan).

2. Lrs. Late Shri Kanti Lal, S/o Lila Ji Ghanchi, R/o Nitoda, Tehshil Pindwara, District Sirohi.

3. Smt. Santosh W/o Late Shri Kanti Lal, Nitoda, Tehsil Pindwara, District Sirohi.

4. Jaswant Kumar S/o Late Shri Kanti Lal, Aged About 8 Years, Minor, Through His Natural Guardian Smt. Santosh W/o Late Shri Kanti Lal, R/o Nitoda, Tehsil Pindwara, District Sirohi.

5. Durgi D/o Late Shri Kanti Lal, Aged About 5 Years, Minor, Through His Natural Guardian Smt. Santosh W/o Late Shri Kanti Lal, R/o Nitoda, Tehsil Pindwara, District Sirohi.

6. Gudiya D/o Late Shri Kanti Lal, Aged About 8 Years, Minor, Through His Natural Guardian Smt. Santosh W/o Late Shri Kanti Lal, R/o Nitoda, Tehsil Pindwara, District Sirohi.

                                                                 ----Respondents


For Appellant(s)          :     Mr. B.S. Deora
For Respondent(s)         :     Mr. V.D. Vaishnav



        HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                     Order

10/01/2022

The present second appeal under Section 100 CPC has been

filed against the judgment dated 20.01.2021 passed by learned

(2 of 5) [CSA-38/2021]

Additional District Judge, Pindwara, Distt. Sirohi who while

dismissing the application filed under Section 5 of Limitation Act

and consequently, the appeal filed by the appellant, upheld the

judgment and decree dated 23.01.2012 passed by Civil Judge (Jr.

Division), Pindwara, Distt. Sirohi in Civil Original Suit No. 35/2007.

Brief facts of the case are that the plaintiff respondent filed a

suit against the appellant defendant seeking possession and

permanent injunction with regard to property situated in village

Nitoda at Mandwara Deo, Tehsil Pindwara, district Sirohi.

On the basis of pleadings of the parties, as many as seven

issues were framed by the learned trial court. The plaintiff

respondent examined oral as well as documentary evidence,

however, the appellant/defendants' evidence could not be

examined and subsequently, the learned trial court closed the

evidence of the defendants and decreed the suit in favour of

respondent-plaintiff.

When the appellant came to know about the decree passed

in favour of the plaintiff, the appellant filed an appeal before the

court of Additional District Judge, Abu Road alongwith application

under Section 5 of Limitation Act. Learned appellate court while

observing that there exists no sufficient and reasonable ground

explaining the delay in filing the appeal, dismissed the application

under Section 5 of the Limitation and so also the appeal.

Learned counsel for the appellant submits that the appellant

defendant had categorically stated in the application that brother

of appellant/defendant Kanti Lal suffered from Silicosis and after

prolonged disease, he died in the year 2017. The appellant Gopal

was also at Gujarat for earning his livelihood and during this

period, the suit was decreed in favour of the plaintiff. It is argued

(3 of 5) [CSA-38/2021]

that appellant is a poor person and since he did not get any

information from the counsel with regard to the decree passed by

the trial court, the defendants could not file an appeal within the

prescribed period. It is further argued that the appellant had filed

the appeal alongwith application under Section 5 of Limitation Act

on 27.08.2012 and after lapse of nine years, instead of deciding

the appeal on merits, the learned appellate court has simply

dismissed the application under Section 5 of Limitation Act despite

the fact that sufficient cause has been given explaining the delay

in filing the appeal. Therefore, it is prayed that impugned

judgments may kindly be quashed and set aside and the matter

may be remanded back to the appellate court with direction to

decide the appeal on merits.

Per contra, Mr. V.D. Vaishnav, learned counsel appearing for

the respondent plaintiff submitted that the appellant woke up from

long slumber to file the appeal against the judgment and decree

passed by the trial court but has failed to discharge the burden of

explaining each day delay in a justifiable manner. Therefore, the

application for condonation has rightly been rejected by the

appellate court.

The Limitation Act, 1963 was enacted by the Parliament to

consolidate and amend the law for the limitation of suits and other

proceedings and for purposes connected therewith. Section 5 of

the Act deals with extension of prescribed period in certain cases.

As per Section 5, any appeal or any application, other than an

application under any of the provisions of Order XXI of the Code of

Civil Procedure, 1908, may be admitted after the prescribed

period, if the appellant or the applicant satisfies the Court that he

(4 of 5) [CSA-38/2021]

had sufficient cause for not preferring the appeal or making the

application within such period.

It is well settled that the Law of Limitation is founded on

public policy to ensure that the parties to a litigation do not resort

to dilatory tactics and seek legal remedy without delay. In an

application filed under Section 5 of the Limitation Act, the court

has to condone the delay if sufficient cause is shown. Adopting a

liberal approach in condoning the delay is one of the guiding

principles, but such liberal approach cannot be equated with a

licence to approach the court-at-will disregarding the time limit

fixed by the relevant statute. The acts of negligence or inaction on

the part of a litigant do not constitute sufficient cause for

condonation of delay. Therefore, in the matter of condonation of

delay, sufficient cause is required to be shown, thereby explaining

the sequence of events and the circumstances that led to the

delay.

The appellant has stated that during the pendency of the

suit, the appellant had also gone out of Rajasthan for earning his

livelihood and his brother Kanti lal who was a labourer in stone

cutting mines, also suffered from Silicosis and after prolonged

disease died in the year 2017, therefore, he could not contact his

counsel nor his counsel informed him about the judgment and

decree dated 23.01.2012. In the interest of justice, the impugned

judgment dated 20.01.2021 passed by learned Additional District

Judge, Pindwara, Distt. Sirohi is quashed and set aside and the

matter is remanded back to the appellate court for deciding the

appeal afresh on merits subject to deposition of cost of Rs.

3,000/- before the appellate court within a period of two months

from today. Appellate court is directed to decide the appeal on its

(5 of 5) [CSA-38/2021]

merits, after granting an opportunity of hearing to the appellant,

preferably within a period of one year.

The appeal is allowed accordingly.

(MANOJ KUMAR GARG),J 101-BJSH/-

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