Abdul Kareem vs Sharifa Bi And 18 Others

This is an application filed by the petitioner/appellant in A.S.No.87 of 2020 under Section 5 of the Limitation Act, with a prayer to condone the delay of 1945 days in filing the first appeal against the Judgment and Decree dated 11-06-2014 in O.S.No.973 of 2008 on the file of VIII Addl. District Judge at Ranga Reddy District. The respondents herein are plaintiffs in the above said suit.

As per the averments made in the affidavit filed in support of the application, it appears that the respondents/plaintiffs have filed O.S.No.973 of 2008 for partition and separate possession of the suit schedule properties. The petitioner has stated that on receipt of suit summons, he has engaged an Advocate to contest the suit and his Advocate instructed him to approach him only when he was asked to do so. But, a month prior to his filing of this appeal, he was informed by his counsel that a preliminary decree was passed in favour of the respondents/plaintiffs. He further stated that there is a delay of 1945 days in filing of appeal and the said lapse was occurred, only because he relied on his counsel for further instructions. The petitioner further stated that he has informed his objections to his counsel and he was advised to file appeal but in view of the said 1945 days delay, he has filed the present application with a prayer to condone the delay.

The respondents/plaintiffs were served with a copy of the application, but they did not choose to file any counter.

The learned counsel for the petitioner/appellant has submitted that the petitioner/appellant has relied on the information of his earlier counsel and he was waiting for further instructions, but later, he was informed about the preliminary decree passed in the suit. The petitioner/appellant has got good case and if the delay of 1945 days is not condoned, he was denied of right to file appeal, and he will suffer irreparable loss. The learned counsel wants to file a document said to have been executed by the Donar from whom the petitioner/defendant said to have obtained Suit Schedule Property by way of oral gift, but his request was not allowed, as he want to introduce the said document through a memo and not by way of any separate application.

Before going into the merits of the application, it would be better for us to state brief note of the suit and how the suit was decreed against the petitioner/appellant.

As per the record placed before us, it seems the respondents/plaintiffs have filed O.S.No.973 of 2008 for partition of plaint “A”, “B” and “C” scheduled properties into nine (9) equal shares and for allotment of one such share to each plaintiff No.1 to 5, one such share to plaintiffs No.6 to 12, one share to plaintiffs No.13 to 19 and two shares to the defendant, who is petitioner herein. The petitioner/appellant appeared before the trial Court and filed written statement with a specific plea that he got plaint “A” schedule property from his father by way of oral gift and the other “B” and “C” schedule properties are his self acquired properties. The trial Court framed two issues and during trial, 6th plaintiff was examined as PW.1, and second plaintiff was examined as PW.2, and they have marked six documents as Exs.A1 to A26. The petitioner herein did not adduce any oral or documentary evidence. The trial Court believed the claim of the respondents/plaintiffs and passed a preliminary decree.

The learned counsel for the petitioner herein submitted that the petitioner herein got the suit “A” schedule property by way of oral gift, which was subsequently confirmed by the Donar by way of a separate document, which he sought to produce at the time of his arguments. The petitioner has got good case, if he is denied the opportunity of contesting the appeal, he will suffer irreparable loss.

The learned counsel for the petitioner/appellant has submitted that there was no willful negligence on the part of the petitioner. He was not informed by the earlier counsel about the proceedings, as such, he could not file the appeal within time. While relying on the Judgment between Hafeeza Bibi & Ors v. Shaikh Farid (died) by LRs & Ors. in civil appeal No.1714 of 2005 on the file of Hon’ble Supreme Court, the learned counsel has submitted that the petitioner has got good case, thereby, sought for condoning the delay.

Now the point for consideration is :

“whether the request of the petitioner to condone the delay of 1945 days in filing the appeal can be condoned as prayed for” ?

The record produced by the petitioner/appellant shows that O.S.No.973 of 2008 has been filed by the respondents/plaintiffs during 2008. The petitioner herein made his appearance before the trial Court, filed written statement with a specific plea that he got plaint “A” schedule property by way of oral gift (HIBA). He has also claimed that the other Suit Schedule Properties were his self-acquisition. It further appears that the respondents/plaintiffs have produced two witnesses, who are examined as PWs.1 and 2, and got marked Exs.A1 to A26. As per the copy of Judgment filed along with the appeal, it is quite clear that the petitioner herein participated in the suit proceedings, but he did not choose to produce any evidence in support of his plea. The suit was disposed on 11-06-2014. Except saying that, his counsel did not inform him, the petitioner herein could not produce any proof about his contention that he had no information about the proceedings before the trial Court.

Section 5 of the Limitation Act reads as follows :

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.

It is settled principle of law that “while filing an application under Section 5 of the Limitation Act, the petitioner has to explain each day delay with cogent reasons. As already stated, the main suit was filed for immovable property, which was shown in three different schedules. An extent of Ac.8.17 guntas of land in Survey No.47 within Ranga Reddy District has been shown as ‘A’ schedule property. The petitioner/appellant has claimed that he got such a big extent of land, which is situated in Ranga Reddy District by way of gift from his father. He has filed written statement and as per the Judgment filed along with the appeal, the suit was disposed during June, 2014. The contention of the petitioner/appellant that he did not consult or contact his counsel to know the progress of his suit is highly unbelievable. The respondents/plaintiffs are no other than his sisters and children of his sisters i.e., plaintiffs No.1 to 5 are sisters and 6 to 19 are children of his two deceased sisters. It is absurd to believe that he kept quite without enquiring his counsel about the suit proceedings for more than six years. Having engaged an Advocate to contest his claim, it is his responsibility to verify what is going on before the trial Court. It was also for the petitioner herein to pay the required fee to the counsel, and the contention of the petitioner that his counsel did not inform anything about the proceedings cannot be believed.

The Division Bench of this Court comprising one of us (PNR,J) and Smt. Justice P.Sree Sudha dealt with this aspect in Kshitij Infraventures Pvt. Ltd., formally known as Ashish Developers and Builders P Ltd., Hyderabad 2022 (1) ALT 533 (D.B.)=2022(2) ALD 442(TS)(DB) represented by its Director Sri Rajkumar Malpani v. Mrs. Khorshed Shapoor Chenai and others. Reference was made to a Judgment of Hon’ble Apex Court between Esha Bhattacharjee Vs.Raghunathpur Nafar Academy 2014 (1) ALT 1.2 (DN SC), where the Apex Court was pleased to observe :

“From the aforesaid authorities the principles that can broadly be culled out are“:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

The Bench further observed that :

“To the aforesaid principles, we may add some more guide lines taking note of the present day scenario. They are : -

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the Courts are required to condone the delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.

According to the learned counsel for the petitioner herein, the father of the petitioner gifted a large extent of property and the petitioner has acquired the remaining scheduled properties through his own efforts. If that is the actual case, he could not have kept quite without contacting his counsel to know what is going on before the trial Court. The only explanation offered by the petitioner for this inordinate delay is lack of information form his advocate. A normal prudent person who claims to have acquired huge properties in a place like Ranga Reddy would not keep quite without approaching his advocate to know the proceedings. Similarly, an advocate who was instructed to contest such a case may not keep quite without informing the client about the need of adducing evidence. Therefore, the plea taken by the petitioner that he was not informed by his advocate about the suit proceedings cannot be believed. The petitioner having allowed the Court to pass a preliminary decree in favour of respondents/plaintiffs now i.e., after the lapse of six years filed this appeal and present application and he want to rely on a photo– copy of document said to have been executed by his father conforming the alleged oral gift.

A litigant knocking the doors of justice is expected to be fair and frank in his pleadings and disclose all relevant facts, which constitute the reasons for delay and leave it to the Court to decide. He should not indulge in misinformation, should not mislead or suppress true and correct facts. Burden is heavy on the litigant seeking equity/discretionary jurisdiction of the Court. The assertions of the appellant/applicant are not bonafide. He was neither fair nor frank.

Therefore, the claim of the petitioner in support is delay of 1945 days is not valid and genuine. It is quite clear that in order to get away with the delay, he is alleging something against the counsel, which cannot be accepted. Since, the petitioner/appellant failed to explain the delay of 1945 days in filing the appeal in a cogent manner, we see no reasons to condone the said delay.

Accordingly, the I.A. is dismissed. Consequently, appeal suit is rejected.

Miscellaneous petitions, if any, pending shall stands closed.

No costs.