Rajasthan High Court - Jodhpur
Iqbal Singh vs Jai Lal (2024:Rj-Jd:37838) on 11 September, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:37838]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 390/2023
1. Iqbal Singh S/o Gurtej Singh, Aged About 44 Years, B/c Jat
Sikh, R/o Dhani Araiyan Tehsil Nohar Dist. Hanumangarh.
2. Jagvinder Singh S/o Grutej Singh by caste Jat Sikh, aged 36
years, Resident of Dhani Araiyan, Tehsil Nohar, District
Hanumangarh
----Appellant
Versus
Jai Lal S/o Jagdish Prasad, B/c Brahmin (Sharma), R/o Bhukarla,
Tehsil Nohar Dist. Hanumangarh.
----Respondent
For Appellant(s) : Mr. R.S. Choudhary
For Respondent(s) : Mr. R.K. Bohra
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
11/09/2024
The present first appeal has been filed by the appellants
against the judgment and decree dated 07.12.2019 passed by
learned Additional District Judge No.1, Nohar, District
Hanumangarh in Civil Original Case No. 17/2019 whereby, the suit
for specific performance of agreement dt. 09.09.2015 has been
decided ex-parte.
The respondent-plaintiff had filed a suit for specific
performance of agreement to sell dated 09.09.2015 against the
appellants-defendants. The appellants did not appear before the
learned trial court despite the plaintiff being ready and willing to
get the deed executed in his favour, therefore, the learned trial
court proceeded ex parte on 12.07.2019 and decreed the suit vide
judgment and decree dated 07.12.2019, on the basis of statement
of P.W. 1. The said statement mentioned that there weren't any
documents to show that the appellants gave assurance to the
[2024:RJ-JD:37838] (2 of 9) [CFA-390/2023]
respondent-plaintiff to execute the sale deed after depositing the
amount in the bank after selling out the rabi crop in 2018. It was
further argued that no whisper of evidence has been adduced by
the plaintiff before the learned trial court that on 13.05.2019 he
appeared before the Sub Registrar for getting the sale deed
executed. Therefore, the Judgment and decree passed by the
learned trial court is perverse, contrary to law and is liable to be
set aside.
The present appeal has been listed in 'Defect' category as
the same is barred by delay of 1302 days. The appellants have
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 appellants submits that the impugned
judgment and decree was passed by the court below on
07.12.2019 but the appellants being illiterate persons had no
knowledge about the said judgment and decree. It is further
submitted that the signature of the appellants was taken by the
process server and they were not informed by him about the suit
proceedings, nor he had given the copy of notice to them. It is
argued that as soon as the appellants came to know about the
judgment, he immediately applied for certified copy of the
judgment and the appeal was filed before this court. 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 respondent argued that the
present appeal against the judgment and decree dated
07.12.2019 has been filed after a period of more than four years
[2024:RJ-JD:37838] (3 of 9) [CFA-390/2023]
and therefore, the delay cannot be said to be bonafide at all.
Admittedly, the appellants have themselves put their signature
over the notices of the suit proceedings in presence of the process
server. It is submitted that despite service of notices upon the
appellants, the ex-parte proceedings were commenced by the
learned trial court from 12.07.2019. Thereafter, a notice was sent
by the respondent's counsel through registered post asking for
execution of registered sale deed on 21.12.2019. Further, it is
submitted that the execution proceedings were initiated by the
respondent on 31.03.2021, and the notices of execution were also
duly served upon the appellants. No day to day satisfactory
explanation with regard to the delay caused in filing the appeal
has been given by the appellants, 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
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."
[2024:RJ-JD:37838] (4 of 9) [CFA-390/2023]
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
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."
[2024:RJ-JD:37838] (5 of 9) [CFA-390/2023]
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
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
[2024:RJ-JD:37838] (6 of 9) [CFA-390/2023]
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
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
[2024:RJ-JD:37838] (7 of 9) [CFA-390/2023]
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."
Admittedly, judgment and decree dated 07.12.2019 passed
by learned Additional District Judge No.1, Nohar, District
Hanumangarh in Civil Original Case No. 17/2019 whereby, the suit
[2024:RJ-JD:37838] (8 of 9) [CFA-390/2023]
for specific performance of agreement dt. 09.09.2015 has been
decided ex-parte. The present appeal has been filed by the
appellants alongwith application for condonation of delay on
29.09.2023. Thus, the appeal is barred by 1302 days i.e. almost
four years. In the application filed by the appellants for
condonation of delay, it has been stated that the appellants came
to know about the judgment and decree dated 07.12.2019 only in
the year 2023. It is relevant to note that upon service of notices
upon the appellants, their counsel had put in appearance before
the trial court, thereafter, the trial court proceeded to decide the
suit ex parte. There is no evidence available on record to support
the contentions of the appellants that they had no knowledge
about the suit filed by the plaintiff and the judgment and decree.
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
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.
[2024:RJ-JD:37838] (9 of 9) [CFA-390/2023]
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,
if any, be sent back forthwith.
(MANOJ KUMAR GARG),J
41-BJSH/-
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