Rajasthan High Court - Jodhpur
Chetan Ram vs Lrs Of Sua Devi (2024:Rj-Jd:37539) on 10 September, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:37539]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 213/2021
Chetan Ram S/o Kewal Ram, Aged About 39 Years, Village
Ghewra, Tehsil Osian, Dis. Jodhpur
----Appellant
Versus
1. Lrs Of Sua Devi, Araba, Tehsil Pachpadra, Dis. Barmer
2. Binja Ram S/o Jetha Ram, Araba, Tehsil Pachpadra, Dis.
Barmer
3. Jamna D/o Jetha Ram, Araba, Tehsil Pachpadra, Dis.
Barmer
4. Panki D/o Jetha Ram, Araba, Tehsil Pachpadra, Dis.
Barmer
5. Sunil S/o Kishan Lal, Residency Road, Nearby Univercity
Office, Jodhpur
----Respondents
For Appellant(s) : Mr. Kaushal Sharma
For Respondent(s) : Mr. Divakar Sharma
Mr. Dinesh Bishnoi
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
10/09/2024
The present first appeal has been filed by the appellant
against the judgment and decree dated 16.08.2011 passed by
learned Additional District Judge (Fast track) No.2, District
Jodhpur in Civil Suit No. 01/2011 whereby, the suit of cancellation
of sale deed and perpetual injunction has been decreed.
The respondent no.1 plaintiff Smt. Sua Devi had filed a suit
for cancellation of sale deed dated 24.10.2008 and permanent
injunction against the appellant. The summons were issued by
the trial court to the defendants but the defendant Sunil did not
[2024:RJ-JD:37539] (2 of 9) [CFA-213/2021]
appear despite service. The notices were served upon the
appellant but no written statement was filed on behalf of the
appellant and finally the right to file written statement was closed
by the trial court on 06.08.2011. The learned trial court proceeded
ex parte and decreed the suit vide judgment and decree dated
16.08.2011 on the basis of statement of the plaintiff and
affidavits, and it was held that the defendant no.1 had executed
the sale deed upon receiving the consideration and also handed
over the property in question and therefore, the defendant no.1
was not having any right to sell the property in question to the
appellant by way of sale deed dated 24.10.2008 and accordingly,
the sale deed dated 24.10.2008 was cancelled.
The present appeal has been listed in 'Defect' category as
the same is barred by delay of 3535 days. The appellant has filed
an application under Section 5 of Limitation Act. Notices of
application u/s 5 of Limitation Act were issued to the respondent
who has filed reply to application.
Counsel for the appellant submits that the impugned
judgment and decree was passed by the court below on
16.08.2011 but the appellant had no knowledge about the said
judgment and decree. It is argued that Smt. Sua Devi died on
03.03.2018 and after her death, when a revenue appeal was filed
by legal representative of Late Smt. Sua Devi before the
Additional District Collector (First), Jodhpur, and same was
decided vide order dated 24.02.2021, the appellant came to know
about the judgment and decree dated 16.08.2011 passed by
learned Additional District Judge (Fast Track) No.2, Jodhpur. It is
argued that as soon as the appellant came to know about the
[2024:RJ-JD:37539] (3 of 9) [CFA-213/2021]
judgment, he immediately applied for certified copy of the
judgment and the appeal was filed before this court. It is
submitted that he never signed vakalatnama in favour of counsel
Shri Mool Singh Gehlot but he appeared on behalf of appellant and
in this regard, he also made a complaint before the Bar Council.
Therefore, it is prayed that the delay in filing the appeal may be
condoned and the appeal may be heard on merits.
Per contra, counsel for the respondents argued that the
present appeal against the judgment and decree dated
16.08.2011 has been filed after a period of more than ten years
and therefore, the delay cannot be said to be bonafide at all.
Admittedly, the summons were duly served upon the appellant
and his counsel had also put in appearance before the trial court
but no written statement was filed on behalf of the appellant. So
far as the complaint made by the appellant against Shri Mool
Singh Gehlot is concerned, the same has been dismissed. No day
to day satisfactory explanation with regard to the delay caused in
filing the appeal has been given by the appellant, therefore, no
case is made out of condoning the delay caused in filing the
appeal and the appeal is liable to be dismissed being barred by
limitation.
I have heard learned counsel for the parties and carefully
gone through the record.
Section 5 of the Limitation Act, 1963 is reproduced
hereinunder for our reference:
"5. Extension of prescribed period in certain
cases.--Any appeal or any application, other than
an application under any of the provisions of Order
XXI of the Code of Civil Procedure, 1908 (5 of
1908), may be admitted after the prescribed
[2024:RJ-JD:37539] (4 of 9) [CFA-213/2021]
period if the appellant or the applicant satisfies the
court that he had sufficient cause for not
preferring the appeal or making the application
within such period.
Explanation.--The fact that the appellant or the
applicant was misled by any order, practice or
judgment of the High Court in ascertaining or
computing the prescribed period may be sufficient
cause within the meaning of this section."
A court's principle duties are to resolve disputes between
parties and achieve substantial justice. The purpose of limiting
rules is 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. In accordance with widely accepted principles,
Section 5 grants the courts discretion over jurisdiction. The term
"sufficient cause" is to be interpreted liberally to promote
substantial justice in cases where the appellant cannot be held
accountable for any negligence, inaction, or lack of bonafides. In
the case of N. Balakrishnan vs. m. Krishnamurthy Reported in
1998 (7) SCC 123 the Hon'ble Apex Court has observed that:-
"It is axiomatic that condonation of delay is a
matter of discretion of the court. Section 5 of the
Limitation Act does not say that such discretion
can be exercised only if the delay is within a
certain limit. 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 a want of acceptable
explanation whereas in certain other cases, delay
of a very long range can be condoned as the
explanation thereof is satisfactory. Once the court
accepts the explanation as sufficient, it is the
result of positive exercise of discretion and
normally the superior court should not disturb
such finding, much less in revisional jurisdiction,
unless the exercise of discretion was on wholly
untenable grounds or arbitrary or perverse. But it
is a different matter when the first court refuses
to condone the delay. In such cases, the superior
[2024:RJ-JD:37539] (5 of 9) [CFA-213/2021]
court would be free to consider the cause shown
for the delay afresh and it is open to such
superior court to come to its own finding even
untrammeled by the conclusion of the lower
court."
The Hon'ble Supreme Court in the case of Pathupati Subba
Reddy (Died) by L.Rs. & Ors. v. The Special Deputy
Collector (LA) [2024] 4 S.C.R. 241 has observed as under:
"16. Generally, the courts have adopted a very
liberal approach in construing the phrase
'sufficient cause' used in Section 5 of the
Limitation Act in order to condone the delay to
enable the courts to do substantial justice and to
apply law in a meaningful manner which
subserves the ends of justice. In Collector, Land
Acquisition, Anantnag and Ors. vs. Katiji and
Ors.2, this Court in advocating the liberal
approach in condoning the delay for 'sufficient
cause' held that ordinarily a litigant does not
stand to benefit by lodging an appeal late; it is
not necessary to explain every day's delay in filing
the appeal; and since sometimes refusal to
condone delay may result in throwing out a
meritorious matter, it is necessary in the interest
of justice that cause of substantial justice should
be allowed to prevail upon technical
considerations and if the delay is not deliberate, it
ought to be condoned. Notwithstanding the
above, howsoever, liberal approach is adopted in
condoning the delay, existence of 'sufficient
cause' for not filing the appeal in time, is a
condition precedent for exercising the
discretionary power to condone the delay. The
phrases 'liberal approach', 'justice-oriented
approach' and cause for the advancement of
'substantial justice' cannot be employed to defeat
the law of limitation so as to allow stale matters
or as a matter of fact dead matters to be revived
and re-opened by taking aid of Section 5 of the
Limitation Act.
17. It must always be borne in mind that while
construing 'sufficient cause' in deciding
application under Section 5 of the Act, that on
[2024:RJ-JD:37539] (6 of 9) [CFA-213/2021]
the expiry of the period of limitation prescribed
for filing an appeal, substantive right in favour of
a decree-holder accrues and this right ought not
to be lightly disturbed. The decree-holder treats
the decree to be binding with the lapse of time
and may proceed on such assumption creating
new rights.
18. This Court as far back in 1962 in the case of
Ramlal, Motilal And Chhotelal vs. Rewa Coalfields
Ltd has emphasized that even after sufficient
cause has been shown by a party for not filing an
appeal within time, the said party is not entitled
to the condonation of delay as excusing the delay
is the discretionary jurisdiction vested with the
court. The court, despite establishment of a
'sufficient cause' for various reasons, may refuse
to condone the delay depending upon the bona
fides of the party.
23. In Basawaraj and Anr. vs. Special Land
Acquisition Officer, this Court held that the
discretion to condone the delay has to be
exercised judiciously based upon the facts and
circumstances of each case. The expression
'sufficient cause' as occurring in Section 5 of the
Limitation Act cannot be liberally interpreted if
negligence, inaction or lack of bona fide is writ
large. It was also observed that even though
limitation may harshly affect rights of the parties
but it has to be applied with all its rigour as
prescribed under the statute as the courts have
no choice but to apply the law as it stands and
they have no power to condone the delay on
equitable grounds."
In the case of Harish & Anr. Vs Rajasthan Board of
Muslim waqf decided on 09.03.2017 by the co-ordinate bench of
this Court, it has been observed that:
"7. It is to be noticed that while levelling an
allegation against the counsel in not informing
the petitioner regarding the order passed by the
Estate Officer, there is no explanation set out as
to why the petitioners did not contact the
counsel for the period of 5½ years. A litigant
should be vigilant enough and should keep
[2024:RJ-JD:37539] (7 of 9) [CFA-213/2021]
himself informed about the pending proceedings
and therefore, the bald assertions on the part of
the petitioner that the counsel did not inform
about the disposal of the matter, cannot be
considered to be a plausible explanation for
condonation of inordinate delay in filing the
petition."
The relevant para from the case of Hussain Vs. Om
Prakash (supra) is reproduced as under:
"9. While construing Section 5 of the Limitation
Act, it is relevant to bear in mind two important
considerations. The first consideration is that the
expiration of period of limitation prescribed for
laying an appeal gives rise a right in favour of the
decree holder to treat the decree as binding
between parties. In other words, on expiry of
prescribed period of limitation the decree holder
acquires a benefit under law of limitation to
construe 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 is to be kept in mind by the Court is that if
sufficient cause for excusing delay is shown by
the party, Court in its discretion may condone
the delay. It is needless to emphasize here that
even after sufficient cause has been shown by a
party, it is not entitled to the condonation of
delay in question as a matter of right. The proof
of a sufficient cause is a condition precedent for
the exercise of the discretionary jurisdiction
vested in the Court by Section 5 of the Limitation
Act. Thus, the application under Section 5 of the
Act deserves rejection."
In the case of Gauri Shankar vs Ram Sahay (supra), the
Court has held that:
"8. .......Therefore, if the appellant has chosen
not to approach the counsel for inquiry about the
progress of the case, it is his own sweet will and
he cannot now turn around and rely on the said
so called default on part of the Advocate for
seeking condonation of delay."
[2024:RJ-JD:37539] (8 of 9) [CFA-213/2021]
Admittedly, the impugned judgment and decree was passed
by learned Additional District Judge (Fast Track) No.2, Jodhpur
way back on 16.08.2011 in Civil Suit No. 01/2011 whereby, the
suit of plaintiff respondent no.1 for cancellation of sale deed has
been decreed. The present appeal has been filed by the appellant
alongwith application for condonation of delay on 19.07.2021.
Thus, the appeal is barred by 3535 days i.e. almost ten years
years. In the application filed by the appellant for condonation of
delay, it has been stated that the appellant came to know about
the judgment and decree dated 16.08.2011 only in the year 2021.
It is relevant to note that upon service of summons upon the
appellant, his counsel had put in appearance before the trial court
and even sought time to file written statement on number of
occasions but no written statement was filed on behalf of the
appellant. Thereafter, the right to file written statement on behalf
of appellant was closed and the trial court proceeded to decide the
suit ex parte. It is evident that the appellant was duly represented
before the Civil Court inasmuch the complaint filed by the
appellant against his counsel before the Bar Council, has been
dismissed. Therefore, the contention of the appellant that he had
no knowledge about the suit filed by the plaintiff and the
judgment and decree is not at all plausible.
The law states that if a case is presented beyond limitation,
the applicant must explain the "sufficient cause" for the delay. It is
against the legislative intent and the specific language of the Act
to excuse tardiness in such cases. It is not appropriate to excuse
the delay only on the grounds that the applicant did not have due
knowledge of the decision passed by the court below. It is
[2024:RJ-JD:37539] (9 of 9) [CFA-213/2021]
noteworthy that no justification for the applicant's failure to notify
the counsel is provided. Hence, the applicant's bald claims that
the counsel failed to notify them of the matter's disposition cannot
be taken seriously as a reasonable justification for the excessive
delay in filing the appeal. If a party is found inactive, negligent or
unjustified, no court can condone the delay. The application must
be decided within the court's parameters. Therefore, the reasons
mentioned by the applicant would not suffice for the delay in filing
the present Civil First Appeal.
Therefore, I do not deem it proper to condone the delay in
filing the present Appeal.
The present Civil First Appeal stands dismissed being barred
by limitation.
Stay petition also stands dismissed. Record of the trial court
be sent back forthwith.
(MANOJ KUMAR GARG),J
10-BJSH/-
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