Rajasthan High Court - Jodhpur
Lrs Of Ratan Lal vs Lrs Of Narayan Lal (2024:Rj-Jd:38492) on 18 September, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:38492]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 182/2024
1. Lrs Of Ratan Lal, S/o Shri Gena Ram Seervi
1/1. Lrs Of Kalu Ram S/o Late Shri Ratan Lal Seervi,
Through Lrs
1/1/1. Smt. Bhanwari Devi W/o Late Shri Kalu Ram
Seervi, Since Deceased.
1/1/2. Manoj S/o Late Shri Kalu Ram Seervi, Aged
About 55 Years, R/o 296/503,
Maradhanayagam Street, Pankaja Mill Road,
Coimbatore, (South)
1/1/3. Ashok S/o Late Shri Kalu Ram Seervi, Aged
About 53 Years, R/o 5/13 Ratchakarpuram,
Sand 2, Sawaripaliyam, Coimbatore.
1/2 Lrs Of Panna Ram @ Surendra S/o Late Shri Ratan
Lal Seervi, Through Lrs
1/2/1 Smt. Soni Devi W/o Late Shri Panna Ram,
Aged About 62 Years, R/o Kamdaro Ki Dhimadi,
Pipliya Kalan, Dist. Pali.
1/2/2 Chetan Prakash S/o Late Shri Panna Ram,
Aged About 39 Years, R/o Kamdaro Ki Dhimadi,
Pipliya Kalan, Dist. Pali.
1/2/3 Durga Devi @ Vijaya Devi D/o Late Shri
Panna Ram, Aged About 36 Years, R/o Pipliya
Kalan,tehsil Raipur, Dist. Pali.
1/3 Smt. Manju Devi D/o Late Shri Ratan Lal Seervi, Aged
About 63 Years, R/o Pipliya Kalan, Tehsil Raipur, Dist.
Pali.
1/4 Deva Ram S/o Late Shri Ratan Lal Seervi, Aged About
77 Years, R/o Pipliya Kalan, Tehsil Raipur, Dist. Pali.
----Appellants
Versus
1. Lrs Of Narayan Lal, S/o Shri Deva Ram Seervi Through
Lrs
1/1 Smt. Daku Devi W/o Late Shri Narayan Lal, R/o
Pipliya Kalan Tehsil Raipur, Dist. Pali.
1/2 Lrs Of Bhera Ram S/o Late Shri Narayan Lal, Pali.
1/2/1 Smt. Dakudi W/o Late Shri Bhera Ram,
(Downloaded on 23/09/2024 at 08:41:11 PM)
[2024:RJ-JD:38492] (2 of 10) [CSA-182/2024]
1/2/2 Bhanwar Lal S/o Late Shri Bhera Ram,
1/2/3 Sukh Lal S/o Late Shri Bhera Ram,
1/2/4 Seema D/o Late Shri Bhera Ram,
1/3 Himmata S/o Late Shri Narayan Lal, R/o Pipliya Kalan
Tehsil Raipur, Dist. Pali.
1/4 Rukma D/o Late Shri Narayan Lal, R/o Pipliya Kalan
Tehsil Raipur, Dist. Pali.
1/5 Rama D/o Lat Shri Narayan Lal, R/o Pipliya Kalan
Tehsil Raipur, Dist. Pali.
1/6 Tijai D/o Late Shri Narayan Lal, R/o Pipliya Kalan
Tehsil Raipur, Dist. Pali.
1/7 Pavani D/o Late Shri Narayan Lal, R/o Pipliya Kalan
Tehsil Raipur, Dist. Pali.
----Respondents
2. Lrs Of Rajesh S/o Late Shri Kalu Ram Seervi, Through Lrs
2/1 Smt. Kusum Latha W/o Late Shri Rajesh Seervi, R/o
8-L-172, Kudi Bhagtasani Housing Board, Jodhpur.
2/2 Utkrash S/o Late Shri Rajesh Seervi, R/o 8-L-172,
Kudi Bhagtasani Housing Board, Jodhpur.
3. Vikram S/o Late Shri Panna Ram, R/o 145, Arakonnam
Road, Kappankottur, O M Mangalam, Dist.
Kancheepuram, Tamil Nadu.
----Respondents
For Appellant(s) : Mr. Mahendra Thanvi
Mr. Narendra Thanvi
For Respondent(s) :
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
18/09/2024
The present second appeal has been filed by the appellant
against the judgment dated 18.03.2019 passed by learned
Additional District Judge, Jaitaran, District Pali, in Civil Appeal
Decree No. 07/2010 affirming the judgment and decree dated
[2024:RJ-JD:38492] (3 of 10) [CSA-182/2024]
02.02.2010 passed by learned Civil Judge, Junior Division Bar,
District Pali, Civil Original Case No. 61/1997 whereby, the suit
filed by respondent plaintiffs for possession and permanent
injunction has been decreed.
The present appeal has been listed in 'Defect' category as
the same is barred by delay of 1899 days. The appellants had filed
an application under Section 5 of Limitation Act.
Counsel for the appellants submits that the impugned
judgment was passed by the court below on 18.03.2019 but the
appellants had no knowledge about the said judgment. It is
argued that most of the appellants resided out of Rajasthan in
Tamil Nadu for many years and due to medical condition also, so
they could not remain in touch with his counsel. The appellants
had faith and trust in their counsel but were never informed about
the judgment. It is further argued that the impugned judgment
and decree was passed in 2010, but respondent-plaintiff did not
take any action regarding its execution until 10.07.2023. Upon
receiving the notices of execution proceedings, the appellants
were shocked to learn that their appeal had been dismissed in
2019. Thereafter, they immediately applied for certified copy of
the judgment and finally the second appeal was filed before this
court on 27.08.2024 without causing further delay. In this regard,
he also made a complaint before the Bar Council against the
counsel. Therefore, it is prayed that the delay in filing the second
appeal may be condoned and the appeal may be heard on merits.
In support of his submission he has placed reliance of the decision
of the Hon'ble Supreme Court in Apangshu Mohan Lodh and
others vs. State of Tripura and Others reported in (2004) 1
[2024:RJ-JD:38492] (4 of 10) [CSA-182/2024]
SCC 119 and decision of the Hon'ble Allahabad High Court in
Dodram vs. The Collector Pilibhit & Ors. Reported in 2014(4)
CCC 644 (Allahabad).
I have heard learned counsel for the appellants 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."
The intention in accepting the concept of limitation is
that "controversies are restricted to a fixed period of time,
lest they should become immortal while men are mortal." The
notion is that every legal proceeding should be kept alive for a
term fixed by the Legislature. The courts are simultaneously
bestowed with the power/discretion to condone the delay if
sufficient cause is proved for not availing the remedy within
the time fixed under the given law. Although, there is no
straight-jacket formula for dealing with the applications under
Section 5 of the Limitation Act, the term "sufficient cause"
used under the abovementioned Section is to be interpreted
liberally to promote substantial justice in cases where the
[2024:RJ-JD:38492] (5 of 10) [CSA-182/2024]
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."
In another decision passed by the Hon'ble Apex Court,
Pundlik Jalan Patil (D) by Lrs. vs. Exe. Jalgaon Medium
Project and another reported in 2008 (17) SCC 448 it was
observed as under:
"The law will presume that it knew of its right to
file appeal against the award. Everybody is
presumed to know law. It was its duty to prefer
appeals before the court for consideration which it
did not. There is no explanation forthcoming in this
regard. The evidence on record suggest neglect of
its own right for long time in preferring appeals.
The court cannot enquire into belated and stale
[2024:RJ-JD:38492] (6 of 10) [CSA-182/2024]
claims on the ground of equity. Delay defeats
equity. The court helps those who are vigilant and
do not slumber over their rights."
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., 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
[2024:RJ-JD:38492] (7 of 10) [CSA-182/2024]
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 Prachin Choudhary vs State of Rajasthan
and Ors. (S.B. Civil Writ Petition No. 12729/2020) decided
on 23.07.2024 passed by a co-ordinate Bench of this Court:
"8. In the case in hand, the petitioner apart from
making a bald statement that petitioner was mentally
upset and not aware of the proceedings, no evidence
was produced. The delay cannot be condoned
mechanically in absence of sufficient cause.
Considering that there is an inordinate delay of more
than three years and there is no explanation worth
acceptance for condoning the delay, no interference is
called for in impugned orders."
[2024:RJ-JD:38492] (8 of 10) [CSA-182/2024]
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
condonation of inordinate delay in filing the petition."
The relevant para from the case of Hussain Vs. Om
Prakash (S.B. Civil Second Appeal No. 75/2014) decided on
08.07.2015 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."
[2024:RJ-JD:38492] (9 of 10) [CSA-182/2024]
In the case of Gauri Shankar vs Ram Sahay reported in
2013(1) WLN 559 (Raj.), 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, the impugned judgment dated 18.03.2019
passed by learned Additional District Judge, Jaitaran, District Pali,
in Civil Appeal Decree No. 07/2010, whereby learned Civil Judge,
Junior Division Bar, District Pali has affirmed the judgment and
decree dated 02.02.2010 in Civil Original Case No. 61/1997,
whereas the present appeal was filed on 27.08.2024, thus barred
by 1899 days. 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 the present case, the appellants
have not shown any documentation to support their claim that
they acted against their counsel or that they complained to the
Bar Council about their attorney's purported inactions. Moreover,
it is not appropriate to excuse the delay only on the ground that
the appellants did not have due knowledge of the decision passed
by the court below as most of the appellants resided out of
Rajasthan but LRs to appellant no. 1/2- Panna Ram @ Surendra,
appellant no. 1/3- Smt. Manju Devi and appellant no. 1/4- Deva
Ram were residing in District Pali, Rajasthan. Hence, the mere
claim of the appellants that their counsel failed to intimate them
about the decision passed by the learned court below is not reason
enough to allow the delayed filing of this appeal. In the absence of
[2024:RJ-JD:38492] (10 of 10) [CSA-182/2024]
the facts for getting the delay condoned in the referred cases by
the appellants counsel, vis-a-vis, the facts of the present case, it
cannot be said that the facts or the reasons of getting the delay
condoned are identical or similar. Therefore, the court does not
find it a fit case to exercise its discretionary jurisdiction of
condoning the delay.
Therefore, I do not deem it proper to condone the delay in
filing the present appeal.
The present Civil Second Appeal stands dismissed being
barred by limitation.
Stay petition also stands dismissed.
(MANOJ KUMAR GARG),J
64-BJSH/-
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