Rajasthan High Court - Jodhpur

Smt. Kunti Diwedi vs Ghewarchand (2023:Rj-Jd:30253) on 18 September, 2023

Bench: Rekha Borana

[2023:RJ-JD:30253]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 3/2016

Smt. Kunti Diwedi W/o Lt. Col. V.N. Dwivedi, aged 78 years, resident of Adarsh Colony, Bikaner (Rajasthan).

----Appellant Versus Ghewarchand S/o Shri Narsinghdas Prajapat, by caste Prajapat, resident of Adarsh Colony, Biakner.

                                                                    ----Respondent


For Appellant(s)              :    Mr. Narendra Thanvi
                                   Mr. Mahendra Thanvi
For Respondent(s)             :    Mr. Surendra Thanvi for
                                   Mr. Sanjeet Purohit



              HON'BLE MS. JUSTICE REKHA BORANA

                                    Judgment

18/09/2023

1. The instant second appeal has been preferred against the

judgment and decree dated 22.08.2014 passed by the Additional

District Judge No.2, Bikaner in Civil Appeal No.27/2010, whereby

the judgment and decree dated 27.09.2010 passed by the

Additional Civil Judge (Senior Division) No.2, Bikaner in Civil Suit

No.81/2009 has been affirmed. The learned trial Court, vide

judgment and decree dated 27.09.2010, decreed the suit of the

plaintiff for eviction and arrears of rent.

2. Brief facts of the case are as under :

(i) On 04.07.1994, plaintiff-respondent filed a suit for eviction

and arrears of rent against defendant-appellant. It was averred in

the plaint that plot Nos.6 and 7 of Adarsh Colony, Bikaner were in

the ownership of Smt. Sunita and Late Smt. Vandana on which

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they had constructed their respective houses. After the death of

Smt. Vandana, the said plot was in ownership and possession of

plaintiff Ghewar Chand who gave it on rent to the defendant @

Rs.1000/- per month for opening a crèche. Defendant deposited

the rent in the bank account of plaintiff till May 1993 but

thereafter defaulted in payment of 13 months' rent i.e.,

Rs.13,000. Further, she constructed a wall in the garage blocking

the main gate; demolished the wall in between the said house and

the adjacent house of Smt. Sunita and constructed a chabutra

therein and started running a school in the premises instead of

opening a crèche. It was further averred that the plaintiff was in

bonafide need of the premise for residence of his family which

could not be fulfilled by partial eviction of the premise and that the

appellant could shift to some other premise for running her school.

Hence, the present suit was filed with a prayer for eviction and

recovery of arrears of rent.

(ii) The defendant, vide her written statement, denied the

averments made in the plaint and submitted that in the year 1989

when she was in search of a property to be purchased for running

school, the plaintiff, who was in illegal possession of the land of

Urban Improvement Trust, rented out the premises to her, posing

himself to be the landlord. Subsequently, construction over the

land in question was demolished by the UIT and at that point of

time, plaintiff and his agent Baggaram offered to sell debris

(tamirat malba) over the land to appellant for Rs.45,000/-. Since

appellant could not pay the said amount in lumpsum, it was

agreed to be paid in monthly instalments of Rs.1,000/- per month.

An oral agreement, on the above terms, was entered into and

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possession was transferred to the defendant. It was also averred

in the written statement that she deposited first three instalments

through cash and thereafter via cheque. After full and final

payment, plaintiff no longer remained to be the landlord of the

premises. Subsequently, vide order dated 12.05.1993, UIT allotted

the said land to her for running a school and rejected the

application preferred by the plaintiff for regularization of

possession over the land. However, a writ petition SB Civil Writ

Petition No.2534/93 was preferred by plaintiff Ghewar Chand and

Baggaram against the order dated 02.05.1993 wherein an interim

order was passed and hence no final proceedings could be

executed by the UIT.

3. On basis of the pleadings as made, the learned trial Court

framed the following 8 issues in the matter:

1.आया प्रतिवादिया ने मई-1993 के बाद का किराया अदा नहीं

कर किराया अदायगी में विधिक व्यतिक्रम किया है ?

2.आया प्रतिवादी ने वाद-पत्र के पैरा सं. 6 (2) में उल्लेखित

तरीके (रीति) से वादग्रस्त परिसर में सारभूत परिवर्तन किया है ?

3.आया प्रतिवादी ने शिशुगृह के स्थान पर परिसर में विद्यालय

शुरू कर दिया है ?

4.आया वादग्रस्त परिसर की वादी को स्वयं के लिए व स्वयं के

परिवार के लिए उचित एवं सद्भावनापू र्ण आवश्यकता है ?

5.आया तुलनात्मक कठिनाई का बिन्दु वादी के पक्ष में है ?

6.आया परिसर की आं शिक रिक्ति संभव नहीं है ?

7.आया वादी व प्रतिवादिया के मध्य मकान मालिक-किरायेदार के

संबंध है ?

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8. अनुतोष?

Vide judgment and decree dated 27.09.2010, the learned

trial Court decreed the plaintiff's suit for eviction and the appeal as

preferred by the defendant was dismissed by the first appellate

Court against which the present Second Appeal has been

preferred.

4. The present second appeal has been preferred with a delay

of 650 days. An application under Section 5 of the Limitation Act

has been filed for condonation of delay in filing the appeal. The

application under Section 5 of the Limitation Act as filed is

reproduced as under :

"The counsel for the applicant/appellant most humbly and respectfully submits as follows :

1. That the applicant has filed a Civil Second Appeal against the the judgment and decree dated 22.08.2014 passed by the learned Additional District Judge No.2, Bikaner in Civil Appeal No.27/2010 titled as Kunti V/s. Ghewarchand and the judgment and decree dated 27.09.2010 passed by the learned Civil Judge (Sr.Div.), No.2, Bikaner, in regular civil suit No.81/2009 titled as Ghewarchand V/s. Smt. Kuntiand the same is based on very sound and cogent grounds. The contents mentioned in the S.B. Civil Second Appeal may kindly be treated as part and parcel of this application for passing an appropriate order or direction in this matter.

2. That the S.B. Civil Misc. has filed by the appellant is suffering with the delay of 435 days as time barred. The delay is causing bonafide as the appellant is an old widow lady who is suffering with

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multiple ailments and it was very difficult to her to travel in her ailment condition.

3. That besides this, being an old ailed lady she is not so legal literate to understand the technalities of the legal process and she was in such an impression that the appeal before this Hon'ble Court can be filed at any stage, but when she came to know about the process, but as soon as the applicant came to know about the process, then without causing any delay she approached to his counsel for filing this appeal after making the arrangement of necessary documents and other expenses, thereafter this application was filed by the counsel of applicant with in the time limit.

4. That the reason of delay in the filing of S.B. Civil Second Appeal is absolute bonafide and there is sufficient reason for the condonation of the delay.

5. That the other ground would be urged at the time of arguments with prior permission of the Hon'ble Court.

Therefore, it is prayed by the humble applicant that delay of delay of 435 days in filing the S.B. Civil Second Appeal may kindly be condoned and this application may kindly be accepted for admission in the interest of justice.

Any other relief which this Hon'ble court deems fit in favour of the appellant/applicant may kindly be passed."

5. The arguments on the application were heard on 01.06.2023

on which date the Court was observed that no plausible or

sufficient ground has been given in the application so as to

condone the delay. However, time was sought by counsel for the

appellant to place on record the documents to substantiate the

fact that the appellant was suffering from serious ailment and

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therefore could not prefer the appeal in time. In pursuance to

order dated 01.06.2023, an additional affidavit of the appellant

has been filed annexing along with certain prescription slips qua

the medical treatment and a discharge ticket of Haldiram

Moolchand Hospital for a period from 10.04.2012 to 11.04.2012

and further from 27.08.2014 to 30.08.2014 of Sardar Patel

Medical College at Bikaner.

6. In the additional affidavit, it has been submitted that the

earlier counsel engaged by the appellant did not take care of the

appeal and she was regularly been informed by the counsel that

her appeal is pending consideration. When the possession of the

property in question was taken in the execution proceedings, she

contacted her counsel and she was informed that soon effective

orders would be passed and she, in bonafide belief, did not take

any further steps. It is only on her engaging a new counsel that

she came to know about non-listing of the appeal for a period of 7

years.

7. A counter to the additional affidavit filed by the appellant has

been filed by the respondents wherein it has been submitted that

the facts as stated by the appellant are totally incorrect. Rather,

the appellant pursued the execution proceedings as initiated by

the decree holder and it is only after the possession of the

property been taken over by the decree holder in the execution

proceedings in the month of April 2015 that the present appeal

was filed in the month of November 2015. All the prescription slips

qua the treatment of the appellant pertain to year 2012 and even

the last discharge ticket as annexed with the additional affidavit

pertain to the period from 27.08.2014 to 30.08.2014. The

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judgment and decree was passed by the First Appellate Court on

22.08.2014 and even the possession of the property was taken

over in April 2015. No reason for delay for the period from

September 2014 to November 2015 has been given by the

appellant. It has also been submitted that ignorance of law is no

excuse and the flimsy ground as raised by the appellant under

Section 5 of the Limitation Act cannot be termed to be plausible.

8. Heard learned counsels and perused the application under

Section 5 of the Limitation Act as well as the documents annexed

along with the same.

9. As observed above, the application under Section 5 of the

Limitation Act did not give any reason for delay in filing the

present appeal which can be termed to be sufficient, logical or

plausible. The only reason given in the application was that she

was under an impression that appeal before this Court can be filed

at any stage.

So far as the said ground of the appellant being not aware of

legal requirement is concerned, reliance on the Hon'ble Apex

Court judgment in Swadeshi Cotton Mills Co. Ltd. vs

Government of UP and Ors., (1975) 4 SCC 378 is apt wherein

the Hon'ble Apex Court held as under :

"3...Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. Ignorance of law is not an excuse for not taking appropriate steps within limitation. Therefore, the arguments that the appellant did not know the true legal position is not one that can be accepted in law."

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10. So far as the documents qua treatment of the appellant are

concerned, all of them except one pertain to the year 2012.

Admittedly, the decree by the First Appellate Court was passed on

22.08.2014. It is also admitted on record that the defendant

pursued the execution proceedings as initiated by the decree

holder. The possession in the said proceedings was taken over in

April 2015 and even till that date, the appellant did not choose to

prefer any appeal against the judgment and decree dated

22.08.2014. The present appeal has been preferred after 7

months of the possession having been taken over. Even if it is

assumed that the appellant was suffering from ailment in the

month of August 2014, no reason for delay for the period of

September 2014 to August 2015 and further, for April 2015 to

November 2015 has been given. So far as the discharge ticket

pertaining to the period 27.08.2014 to 30.08.2014 is concerned,

the same is also not supported by any prescription or details of

the hospitalisation of the appellant.

11. So far as the averment of the appellant regarding the

counsel not pursuing the matter diligently is concerned, the same

can be of no consequence so far as the delay in filing the present

appeal is concerned as it is not the case of the appellant that

despite instructions, the counsel did not file the appeal within the

prescribed time. Even otherwise, while deciding the application

under Section 5 of the Limitation Act, this Court would not be

concerned with the time spent after the appeal having been filed.

This Court has to look into the delay caused prior to filing of the

appeal which in the present case is inordinate being 650 days.

Further, in Estate Officer, Haryana Urban Development

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Authority and Another Vs. Gopi Chand Atreja, (2019) 4 SCC

612, the Hon'ble Apex Court held as under :

"18. If, according to the Appellants-HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act."

12. So far as the judgments as relied upon by learned counsel

for the appellant are concerned, there is no dispute about the ratio

as laid down in Ummer Vs. Pottengal Subida and Ors., (2018)

15 SCC 127, that a liberal view should be taken while dealing

with the matters relating to condonation of delay and the applicant

praying for condonation of delay is not required to explain delay of

each day. But then, in the said case, the facts as alleged in the

application under Section 5 of the Limitation Act were duly proved

by documents. It was also proved therein that the appellant

remained hospitalized for a long time qua his heart disease as well

as dengue fever. The same is not the position in the present

matter. Herein, the appellant, after the impugned judgment and