Jetaram And Ors vs Tari Devi

Office has reported the appeal to be barred by 2252 days. This second appeal under Section 100 CPC is directed against the judgment & decree

dated 22/2/2014 passed by the Addl. District Judge, Barmer, whereby, the appeal filed by the respondent against the judgment & decree dated

19/9/2012 passed by the Addl. Civil Judge (Sr. Div.), Barmer was accepted and the decree passed by the trial court was modified.

The suit was filed by the respondent for permanent injunction, which came to be decreed by the trial court to the extent of 45'x30' in terms of the

Commissioner's report, wherein, the portion was marked as A, B, C, D.

The plaintiff being not satisfied with the decree granted by the trial court, filed first appeal.

The first appellate court allowed the appeal and granted decree to the extent of boundaries indicated in para 1 of the plaint.

The appellate decree was passed on 22/2/2014 and the present appeal has been filed on 22/7/2020. Along with the appeal, an application under

Section 5 of the Limitation Act, 1963 has been filed seeking condonation of delay in filing the appeal with the following averments:

That as the decision of the first appeal was not conveyed to the appellants by the counsel before the learned trial court or was not received by the

appellants. However, as soon as the appellants came to know recently about allowing the first appeal in favour of the plaintiff- respondent, the

appellants rush to the office of the counsel and obtained the copy of the judgment and decree which is under challenge and rushed to Jodhpur and

engaged the counsel at Jodhpur and filed the First Appeal. Thus, the appellants could not file the appeal before this Hon'ble Court within prescribed

limitation and it is just and reasonable and sufficient cause that the appellants could not file the appeal within the prescribed limitation. The causing of

delay in filing the appeal deserves to be condone in the interest of justice. The present appeal has been filed by committing delay.

That the appellants have no intention to approach this Hon'ble Court after completion of prescribed limitation. Due to reasons described above,

bonafidely the appellants have approached this Hon'ble Court after the expiry of prescribed limitation.

(emphasis supplied) On notice being issued, the respondent filed reply to the application seeking condonation of delay, contesting the averments made

in the application. It was pointed out that the appellants have taken contradictory stand, on the one hand they have claimed that the decision of first

appeal was not conveyed to the appellants by the counsel and on the other hand they have claimed that the decision of the first appeal was not

received by the appellants. It was also alleged that the application was laconic and that after the decision by the Addl. District Judge, the respondent

raised the construction on the land in question and the appellants were having knowledge of the judgment and decree since 22/2/2014 and, as such,

they are not entitled to seek condonation of delay based on the submissions made in the application.

On 21/1/2021, after arguing for sometime on the application, time was prayed for on behalf of the appellants, whereafter, an additional affidavit has

been filed by the appellants inter alia seeking to indicate fresh reasons for the delay in filing the appeal, as apparently the averments made in the

original application were laconic.

It is claimed in the additional affidavit that the counsel representing the appellants before the appellate court passed away on 4/4/2016, he never

informed the appellants about the final decision rendered in the first appeal and as such the appellants were not aware of the decision until a notice

dated 27/1/2020 was received by the appellant no.2 from the office of Panchayat Samiti. It is claimed that on receipt of the notice, queries were made

about passing of the order in appeal and the notice was responded to. Thereafter, S.B.Civil Writ Petition No. 6873/2020 was filed before this Court,

which was dismissed on 26/8/2020 as withdrawn with liberty to avail alternative remedy. Whereafter, the present appeal was filed. It was again

claimed that the delay in filing the appeal was not intentional and that the appellants have a strong case and, therefore, the delay be condoned.

Learned counsel for the appellants - applicants reiterated the submissions contained in the application filed under Section 5 of the Limitation Act and

the additional affidavit. It was submitted that the judgment was delivered on 22/2/2014, counsel did not inform about the outcome of the appeal, later

on he died and the appellants never came to know about the decision in the appeal and it was only after receipt of notice in January, 2020 that they

became aware of passing of the decree and, therefore, they had sufficient cause for not approaching the Court in time and, consequently the delay

deserves to be condoned.

Reliance was placed on K. Subbarayudu & ors. Special Deputy Collector (Land Acquisition) : 207 DNJ (SC) 928, Devineni Padmaja vs. Vundavalli

Srinivasa Rao : 2012 DNJ (SC) 855, Subramaniaswamy Temple, Ratnagiri vs. V. Kanna Gounder : 2008 DNJ (SC) 670 and Roshan Lal vs. Municipal

Board, Amet : 2008 (2) DNJ (Raj.) 1087.

Learned counsel for the respondent vehemently opposed the submissions. It was submitted that the appellants, only with a view to somehow indicate

sufficient reasons, have put the blame on the lawyer in purportedly not informing the outcome of the appeal, which claim is absolutely false.

Further submissions were made that the respondent has specifically indicated in his reply that after passing of the judgment in the year 2012, the

respondent had raised construction on the land in question and the appellants were well aware of the judgment & decree dated 22/2/2014 since the

passing of the decree, however, in additional affidavit, there is no response to the said specific averment and, therefore, the plea raised on its face is

absolutely incorrect.

Further submissions were made that even in response to the notice issued by the Panchayat Samiti, again knowledge of decision dated 22/2/2014 has

been indicated and, therefore, the plea raised in this regard has no substance. It was submitted that the application under Section 5 of the Limitation

Act being bereft of any substance deserves to be dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The appellate judgment was delivered on 22/2/2014 and the present appeal has been filed on 22/7/2020 i.e. after a lapse of over six years and the

office has reported the same to be barred by 2252 days.

The sum and substance of the application under Section 5 of the Limitation Act and the additional affidavit is that the appellants were not informed by

the counsel about the decision dated 22/2/2014. The said plea raised apparently is specious, inasmuch as the counsel, who was representing the

appellants died on 4/4/2016 i.e. after more than two years. It is not indicated by the appellants as to between 22/2/2014 and 4/4/2016 and thereafter till

January, 2020 whether they made any effort/inquiry to find out the status of the appeal. It cannot be comprehended that a party once entrusting a case

to the counsel would not care to even try to meet the counsel to find out the status of the case for over six years and as such, apparently, said

submission regarding counsel not informing is without any basis.

A perusal of the original application filed under Section 5 of the Limitation Act, contents whereof have been quoted hereinbefore, indicates that a

stock plea was raised that the counsel did not inform about the outcome and as soon as the appellants became aware of passing of the judgment by

the appellate court, they rushed to the office of counsel, obtained copy of the judgment and rushed for filing the appeal. In fact, it is not even indicated

in the application filed initially that the counsel had died in the year 2016 and it is only when the Court found that the application was laconic, time was

sought and additional affidavit was filed, wherein, for the first time, it was indicated that the counsel has died. In fact, the submission made in the initial

application is that the copy of the judgment was obtained from the office of the counsel, which submission now appears to be per se incorrect.

The standard practice in seeking condonation of delay by putting the blame on the counsel allegedly not informing about the outcome of the litigation,

cannot be countenanced in each and every case where the party, even if the allegation is true, chose not to approach the counsel for six long years

and as such, besides the fact that the plea raised is apparently incorrect, in view of the averments contained in the application filed initially and the

additional affidavit, the same cannot be accepted.

Further, as submitted by learned counsel for the respondent the averments contained in reply to the notice also contain indications of the appellants

being aware of passing of the judgment, wherein, it is claimed that the appellants have been following the order of Addl.District Judge till filing of the

reply.

The casualness in filing the additional affidavit and making submissions before the Court is also reflected from the fact that the writ petition was

withdrawn on 26/8/2020 with liberty to avail alternative remedy available under the law. However, the appeal had already been filed on 22/7/2020 and,

as such, apparently instead of withdrawing the writ petition with liberty to 'avail alternative remedy', the petition should have been withdrawn to

'pursue the alternative remedy' by indicating that the appeal had already been filed.

Be that as it may, the ground raised in the application and the additional affidavit seeking to falsely blame the counsel, in the circumstances as noticed

hereinbefore, cannot be said to be sufficient reason so as to seek condonation of delay of over six years in filing the appeal.

Reliance placed on the judgments in the case of K. Subbarayudu (supra) and Devineni Padmaja (supra) have no application to the facts of the present

case, wherein, the Hon'ble Supreme Court, though observed that 'sufficient cause' should receive a liberal construction, did not rule to acknowledge

absolutely false averments. The judgments in the case of Subramaniaswamy Temple (supra) and Roshan Lal (supra), which have been cited to

contend on merits of the appeal, are also of no use as the appellants are first required to cross the hurdle of inordinate delay in filing the appeal.

In view of the above discussion, as the appellants are guilty of unexplained delay of over 06 years & laches and the reasons indicated in the

application seeking condonation of delay have been found ex-facie incorrect, based on the contradictory plea raised in the initial application and the

additional affidavit, no case for condonation of delay of over six years in filing the appeal is made out.

The application seeking condonation of delay in filing the appeal is, therefore, dismissed.

Consequently, the appeal is also dismissed as barred by limitation.