Kirtanlal Patel vs Subadra and Others

Sanjay K. Agrawal, J.—The substantial question of law formulated and to be answered by this Court in the defendant''s second appeal is as under:--

"Whether by affirming the judgment and decree of the trial Court and by dismissing the appeal on the ground of limitation lower appellate Court has committed illegality?"

[For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court].

The facts, briefly stated are as under:--

1.1 The plaintiffs namely Smt. Subadra and Ramkumar Vaishnav filed a suit against the defendants'' No. 1 to 5 for permanent injunction restraining the defendants'' No. 1 to 5 from interfering with their peaceful possession.

1.2 Defendants No. 1 to 5 appeared before the trial Court and filed their written statement and ultimately, suit was decreed on 1-10-2010.

1.3 The First Appeal under Section 96 of the Code of Civil Procedure, 1908 (in short "C.P.C.") was filed on 3-9-2011 along with an application under Section 5 of the Limitation Act stating inter alia that the delay of 11 months has occurred in preferring the appeal, as the counsel appearing for the defendants'' No. 1 to 5 before the trial Court have assured to inform the outcome of the suit, as final argument was heard on 27-9-2010, but did not inform the judgment having been pronounced on 1-10-2010, and ultimately, when the plaintiffs commenced construction work on 11-8-2011 in the suit land and on inquiry, it was informed to them that the Civil Court has granted decree in their favour, then they inquired into the matter and applied for the certified copy on 17-8-2011, and filed the first appeal on 3-9-2011 before the First Appellate Court.

1.4 The First Appellate Court, by its order dated 14-9-2011 without notice to the other side, dismissed the application under Section 5 of the Limitation Act holding that no sufficient cause has been shown for filing the appeal and consequently, also dismissed the first appeal.

Impugning the legal acceptability and sustainability of the order dated 14-9-2011 passed by the First Appellate Court, the second appeal under Section 100 of the CPC has been preferred by the defendant No. 4 (appellant herein), which has been admitted for final hearing on the substantial question of law as stated in opening paragraph of this judgment.

Mr. Hanuman Prasad Agrawal, learned counsel appearing on behalf of the appellant/defendant would submit that the First Appellate Court has committed grave illegality in holding that no sufficient cause has been shown in preferring the appeal under Section 96 of the CPC, whereas, Mr. Ashok Vaishnav, learned counsel appearing for the respondents No. 1 and 2/plaintiffs would submit that the First Appellate Court has rightly rejected the application under Section 5 of the Limitation Act and thereby dismissal of first appeal is well merited.

I have heard learned counsel appearing for the parties and perused the records of both the Courts below with utmost circumspection.

Answer to substantial question of law:--

A bare perusal of the order-sheet of the Trial Court would show that the defendants'' No. 1 to 5 duly contested the suit, and ultimately, the arguments were heard on 27-9-2010. According to the defendants'' No. 1 to 5, their counsel, after final argument on 27-9-2010 promised to intimate the judgment of the Trial Court, which had to be pronounced on 1-10-2010, but he did not inform the same, and ultimately, when the plaintiffs'' commenced the work on the suit land on the strength of the decree, they came to know, and collected information about the decree and filed the appeal on 3-9-2011 with an application for condonation of delay in preferring the appeal. The aforesaid application was not replied by the plaintiffs and the First Appellate Court by its impugned order, rejected the application finding no sufficient cause.

It is true that there was delay of 11 months in filing the appeal, but the fact remain that counsel of defendants'' No. 1 to 5, after final arguments on 27-9-2010 promised them to intimate the outcome of the judgment of the Trial Court, which had to be pronounced on 1-10-2010, but he did not inform the same, therefore, they could not prefer the appeal within the prescribed period of limitation.

It is well settled law that the Courts should adopt a justice-oriented approach in considering the application for condonation of delay. However, the Court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion, by the Court for condoning the delay.

In case of N. Balakrishnan Vs. M. Krishnamurthy, , it has been held by the Supreme Court that the sufficient cause has to be construed liberally especially when the delay is not deliberate and mala fide. Relevant portion of the report held as under:--

"11. Rules 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the 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. The 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 rights 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 in 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 and Others, and The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, ."

Recently, the Supreme Court in case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, has laid down the principles for deciding application for condonation of delay which has been followed by this Court in case of Pradeep Majumdar Vs. Duvas Bai and Others, . Para 21 of the Esha Bhattacharjee (supra) states as under:--

"21. 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, behavior 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."

Keeping in view the principles laid down in the above stated cases, the facts of the instant case is examined, I find from the record that the defendants'' No. 1 to 5 were appearing in the trial diligently and seriously contested the suit and in absence of knowledge of judgment and decree of the Trial Court, they could not prefer the appeal within the period prescribed under the Limitation Act. It is neither deliberate and nor out come of mala fide action and the cause shown for delay in filing the application is a "sufficient cause" within the meaning of Section 5 of the Limitation Act.

Thus, the First Appellate Court has committed illegality in rejecting the application under Section 5 of the Limitation Act. The impugned order/judgment dated 14-9-2011 is hereby set-aside. The delay in filing the appeal is condoned. The First Appeal (Kirtan v. Smt. Subadra and others) is restored to the original file on First Additional District Judge, Baloda Bazar for hearing and disposal of appeal on merits in accordance with law.

The parties are directed to appear before the First Additional District Judge, Baloda Bazar on 14-4-2014. The First Appellate Court is directed to decide the appeal expeditiously. Resultantly, the second appeal is allowed to the extent indicated here-in-above.