Daulal And Anr vs Maltibai And Anr

This second appeal preferred by the appellants/plaintiffs was admitted for hearing on the following substantial question of law :Â​

“Whether the First Appellate Court is justified in dismissing the appeal by rejecting the application for condonation of delay holding that no

sufficient cause has been shown for the delay of 15 days in filing first appeal under Section 96 of the CPC by recording a finding which is perverse to

the record ?â€​

(For the sake of convenience, the parties will be referred hereinafter as per their status in the trial Court.)

The two plaintiffs filed a suit for declaration of title and recovery of possession against the defendants which was dismissed by the trial Court on

merits vide judgment and decree dated 21/07/2004 against which the plaintiffs preferred first appeal under Section 96 of the CPC along with an

application for condonation of delay for condoning the delay of 15 days in filing the appeal. The first appellate Court did not found favour with the

application for condonation of delay and rejected it and consequently, dismissed the appeal as well vide judgment and decree dated 28/11/2007 holding

that sufficient cause has not been shown by the plaintiffs for delay of 15 days in filing the appeal against which this second appeal under Section 100

of the CPC has been preferred by the appellants/plaintiffs in which substantial question of law has been framed and set out in the opening paragraph

of this judgment.

Mr. Anand Kumar Gupta, learned counsel appearing for the appellants/plaintiffs would submit that sufficient cause has been shown by the plaintiffs

in the application for condonation of delay for delay of 15 days in filing the appeal, yet the first appellate Court dismissed the appeal on the ground that

no sufficient cause has been shown by the plaintiff for delay in filing the appeal, as such, the second appeal deserves to be allowed by setting aside the

judgment and decree of the first appellate Court.

Mr. J.A. Lohani, learned counsel appearing for the respondents/defendants would support the judgment and decree passed by the first appellate

Court and wold submit that the second appeal deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost

circumspection.

The Supreme Court in the matter of Collector. Land Acquisition, Anantnag and another v. Mst. Katiji and others (1987) 2 SCC 107 while

construing the meaning of “sufficient cause†under Section 5 of the Limitation Act, 1963 held that the Courts should adopt a liberal and justiceÂ‐

oriented approach and condoned the delay of four days in filing appeal, under Section 5 of the Limitation Act, 1963. Their Lordships of the Supreme

Court further held that the High Court erred in dismissing the appeal on hyper technical ground of bar of limitation and observed as under: Â​

“The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression

sufficient cause"". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do evenÂhanded justice

on merits in preference to the approach which scuttles a decision on merits.â€​

Similarly, the Supreme Court in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 observed that sufficient cause has to be construed liberally

especially when the delay is not deliberate and mala fide. Paragraphs 11 and 12 of the report state as under:Â​

“11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek

their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a lifeÂ‐

span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of

time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each

remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on

public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of

limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy

promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in

approaching the court is always deliberate. This Court has held that the words ""sufficient cause"" under Section 5 of the Limitation Act should receive

a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575 a]nd State of West Bengal

Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].â€​

Thus, applying the principle of law laid down by the Supreme Court in N. Balakrishnan (supra) which has been followed by their Lordships in

Bhivchandra Shankar More v. Balu Gangaram More and Ors. (2019) 6 SCC 387 to the facts of the case at hand, it is quite vivid that plaintiffs' suit for

declaration of title and recovery of possession was dismissed by the trial Court on merits against which they filed an appeal along with an application

for condonation of delay for condoning the delay of 15 days in filing the appeal. The application for condonation of delay was rejected by the first

appellate Court along with the first appeal only on the ground that each day delay has not been explained by the plaintiffs and medical certificate has

also not been filed. The reason projected by the plaintiffs in the application for condonation of delay for the delay of 15 days is that he was suffering

from dysentery but the medical certificate has not been filed. In the considered opinion of this Court, sufficient cause has been shown by the plaintiffs

for the delay of 10 days in filing the appeal and if medical certificate was not filed by them, then learned additional District Judge could have given an

opportunity to the plaintiffs to file medical certificate. The first appellate Court has gravelly legally erred in taking a hyper technical view and rejecting

the application for condonation of delay and subsequently, dismissing the appeal as well. The appeal, particularly for declaration of title, ought to have

been decided on merits.

Consequently, the instant second appeal is allowed. The impugned judgment and decree passed by the first appellate Court is set aside; delay in

filing the appeal is condoned subject to payment of cost of Rs. 2,000/Â to the respondents/defendants which will be paid by the plaintiffs to the

defendants before the first appellate Court and the first appeal is restored to its original file for hearing and disposal on merits in accordance with law

preferably within a period of three months from the date of receipt of record and certified copy of this order.

Registry is directed to return the records to the first appellate Court forthwith.