Madhya Pradesh Grih Nirman Mandal vs Kamala Devi

A.M. Sapre, J.—This is a second appeal filed by the plaintiff u/s 100 of C.P. Code against the judgment/decree, dated 27.2.1992, passed by learned District Judge, Ujjain in First Civil Appeal No. 1 -B of 1991, No. 24-A of 1991 which in turn arises out of Civil Suit No. 102-B of 1988, decided by 3rd Civil Judge, Class I, Ujjain on 20.11.1990. This appeal was admitted for final hearing on following substantial questions of law:

Whether the first appellate Court erred in not affording a reasonable opportunity to the appellant to meet the objections as to limitation or to move an application for condonation of delay?

Respondent (plaintiff) filed a suit against the respondents for recovery of Rs. 10,455/- before Civil Judge, Class II, out of which this second appeal arises. The suit was contested by the appellant. By judgment and decree, dated 20.11.1990, the learned trial Judge decreed the suit. The appellant i.e. defendant felt aggrieved, filed first appeal before the District Judge, Ujjain. Since, in the opinion of learned first appellate Judge, the first appeal was filed beyond the period of limitation prescribed and, therefore, the appeal was also dismissed having been filed beyond the period of limitation without even giving any opportunity to file an application for condonation of delay u/s 5 of Limitation Act. It is against this judgment and decree, this second appeal has been preferred by the defendant, which as stated supra, was admitted for final hearing on aforementioned substantial questions of law.

Heard Mr. B.L. Pavecha, learned Senior Counsel with Mr. Yogesh Mittal, learned Counsel for the appellants. None for the respondents, though served as per record.

Having heard learned Counsel for the parties and having perused record of the case, I am inclined to allow the appeal by answering substantial questions of law framed in favour of the appellants/defendants and while setting aside of the impugned judgment/decree, remand the case to the lower appellate Court for deciding the appeal on merits.

At the outset, I can do no better except to quote the subtle observations made by the Supreme Court in one of the most coveted decisions reported in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, , where Vivian Rose, the learned Judge, speaking for the Bench made following memorable observations in his imitable style of writing. How eloquent and far reaching these observations are:

A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leave no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to$both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our Laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, the decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

It is these observations of Supreme Court which must always be kept in mind by the Courts/Tribunals while deciding the rights of the parties and the issues of the nature which is subject matter of this case.

Keeping in view the aforesaid well settled law laid down by Their Lordships or Supreme Court in Sangram Singh''s case (supra) when I apply the same to the facts of this case, I have no hesitation in setting aside the impugned judgment/decree and allowing the appeal. In fact, according to appellant and rightly so the appeal was not filed late but was within the period of limitation if the limitation is calculated properly. In all fairness, the learned Additional District Judge ought to have first given an opportunity to the appellant for making an application u/s 5 of Limitation Act for condonation of delay in filing appeal and then should have condoned the delay by holding the cause to be a sufficient one. The condonation of delay advances the cause of justice. Whereas, not condoning the delay defeats the ends of justice. A right of first appeal given to a litigant u/s 96 is one of the most important and valuable rights given to him. It cannot be and should not be taken away by relying upon such technical issues. It has been the consistent view of the Supreme Court at least in the recent judgment that the Court should be very liberal in condoning the delay. In other words, to do substantial justice between the parties, the litigants have to be given an opportunity to contest their cases on their substantive rights.

I have gone through the cause now stated by appellant in this memo of appeal and the submission urged in its support and I am satisfied that the appellants were able to make out a sufficient cause for condoning the delay in filing the appeal. As stated supra, the cause explained is just, proper and reasonable and hence, the delay deserves to be condoned. As a matter of fact, when I calculate the limitation with reference to dates of application made for obtaining the certified copy of impugned judgment of trial Court and the date on which it was ready and delivered to the appellant then I notice that there is in fact no delay much less delay of 30 days. In any event, assuming that there is a delay of 30 days in filing appeal then also keeping in view the aforesaid observations of Supreme Court in Sangram Singh case supra coupled with the fact that right of first appeal was taken away without there being any hearing on merits, the so-called delay of 30 days is hereby condoned.

In my opinion, it is the duty of appellate Court before it proceeds to dismiss One appeal on the ground of limitation, to first afford an opportunity to the appellant to file an application u/s 5 of Limitation Act and seek condonation of delay in filing appeal and satisfy the Court that a sufficient cause is made out for condonation of delay. It is of course subject to affording an opportunity to respondent of appeal to object that no such ground is made out. In fact, it is the obligation on the part of appellant to make such application along with memo of appeal itself as provided in Order 41 Rule 1 of C.P. Code. But where appellant feels that his appeal is within time and respondent or/and Court feel, otherwise then appellant is entitled to be afforded an opportunity to explain the delay as provided in Section 5 of the Limitation Act before dismissal of appeal on the ground of limitation. Since in this case, the Court failed to do this and hence committed an error of law in dismissing the appeal as being barred by limitation. I am, therefore, inclined to set aside the impugned appellate order on this ground as well.

In view of the findings recorded by this Court supra, the appeal succeeds and is allowed. As a necessary corollary, the appeal filed before the first appellate Court out of which this second appeal arises is held to be within limitation. As a consequence, the impugned judgment/decree is set aside and the appeal is remanded to the first appellate Court for hearing on merits. Since, the appeal is pending before this Court for the last 14 years; the lower appellate Court is directed to decide the matter on merits preferably within a period of six months from today. Registry is directed to send the original record of the case to the first appellate Court forthwith. Parties are directed to appear before the lower appellate Court on 30.7.2007. Since, none appeared for the respondent in this appeal despite notice to them and hence, first appellate Court will issue fresh notice of hearing of appeal to respondent before deciding the appeal on merits.

No costs.