Mahabir vs Bhawani and Another

Rakesh Kumar Garg, J.

C.M. No. 1368-C of 2007.

This is an application for condonation of delay of 5 years 7 months and 9 days in filing the present appeal.

In this application, the appellant has alleged that after passing of the judgment and decree dated 2.6.2001, the appellant/defendant filed a review petition bearing No. 19 of 2001 before the Additional District Judge, Narnaul on 17.7,2001 which was entertained by the Additional District Judge, Narnaul and the said review petition was dismissed vide judgment dated 4.12.2006. After dismissal order of the review petition, the appellant/applicant applied for the certified copy of the same on 6.12.2006 and the same was prepared on 9.12.2006 and delivery thereof was taken on 20.12.2006 and the Regular Second Appeal was filed on 11.1.2007 in this Court. It has been further averred in the application that the delay of 5 years 7 months and 9 days in filing the Regular Second Appeal was under the wrong impression and due to the fact that the review petition was filed on 17.7.2001 against judgment and decree dated 2.6.2001 and the decision thereof was passed vide judgment dated 4.12.2006. Thus, the time consumed w.e.f. 17.7.2001 till 4.12.2006 was due to the pendency of the review petition before the Additional District Judge, Narnaul and thus the delay of filing the appeal against the judgment and decree dated 2.6.2001 in this Court is unintentional and beyond the control of the appellant-applicant and due to the reason that review petition has been filed and entertained by the Additional District Judge, Narnaul. On the aforesaid averments, it was prayed that delay of 5 years, 7 months and 9 days in filing the appeal may kindly be condoned.

Upon notice, the respondents filed reply stating therein that there is no good and justifiable ground to condone the inordinate delay of 5 years 7 months and 9 days in filing this appeal. It was also contended that the appellant has failed to make out the case for condonation of delay as provided u/s 14 of the Limitation Act and therefore this application as well as appeal is liable to be dismissed.

In support of his case, learned Counsel for the appellant has placed reliance upon judgment of the Apex Court in State of Uttar Pradesh Vs. Zavad Zama Khan, and a judgment of this Court in Khiloni and Others Vs. The Municipal Committee, .

On the other hand, learned Counsel for the respondents has relied upon a judgment of the Apex Court in the case of Deena (Dead) through LRs. Vs. Bharat Singh (Dead) thr. LRs. and Others, .

I have heard learned Counsel for the parties.

Section 14(1) of the Limitation Act is quoted hereunder.

Exclusion of time of proceeding bona fide in court without jurisdiction: (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal Or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

While interpreting the aforesaid provisions of Section 14 of the Limitation Act, the Hon''ble Supreme Court of India, in the case Deena v. Bharat Singh (supra), observed as under:

The main factor which would influence the Court in extending the benefit of Section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in god faith in the Court having no jurisdiction is entitled to exclusion of that period. The expression ''good faith'' as used in Section 14 means'' exercise of due care and attention.'' In the context of Section 14 expression ''good faith'' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. The Apex Court in the case of Vijay Kumar Rampal and Others Vs. Diwan Devi and Others, observed as under.

The expression good faith qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite court fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a Court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in Section 14 of the Limitation Act.

It is clear from the above judgments of the Hon''ble Supreme Court that for extending the benefit of Section 14 to a litigant, the party must prosecute his case with due diligence and good faith, the proceedings in the Court which ultimately is found to have no jurisdiction.

Applying the above rule of law, the delay in the present case cannot be condoned on the ground that the appellant was prosecuting his case in another Court. In the present case, admittedly, review petition was filed by the appellant before the Additional District Judge, Narnaul and the Court of Additional District Judge, Narnaul was competent and was having jurisdiction to decide the aforesaid review petition and the said review petition was dismissed not on any technical ground but no merits. The Court of Additional District Judge, Narnaul, found no merit in his review petition, meaning thereby, the judgment of the trial Court was upheld on merits.

The judgments relied upon by the learned Counsel for the applicant are not applicable in the facts and circumstances of the present case. In Khiloni''s case (supra) the appeal was filed before a wrong Court which was subsequently transferred to the court of competent jurisdiction and no objection was raised while admittons the appeal. On return of memorandum of appeal for presentation before competent Court, appeal was filed along with application under Sections 5 and 14 of the Limitation Act and in those circumstances, it was held that the delay ought to have been condoned. In the case of Zafar Khar and others (supra) the Hon''ble Supreme Court observed as under:

In order to attract the application of Section 14(1), the parties seeking its benefit must satisfy the Court: (i) that the party as the plaintiff was prosecuting another civil proceeding with due diligence (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It may be assumed that the earlier proceeding u/s 144 of the CPC was a civil proceeding for the purpose of Section 14. It may as well as assumed in favour of the appellants that they were prosecuting the same with due diligence and in good faith, as they relentlessly carried the proceeding up to the High Court invoking its extraordinary jurisdiction. The first of the aforementioned three cumulative conditions can be said to have been satisfied.

From the perusal of the above observations of the Supreme Court, it is clear that the ratio of law laid down by the said judgment goes against the appellant and not in his favour.

Thus, keeping in view the facts and circumstances of the law laid down by the Hon''ble Supreme Court of India, the appellant is not entitled to the deduction of period w.e.f. 17.7.2001 upto 4.12.2006 for computing the period of limitation for filing the present appeal.

Thus, I find no ground to condone the delay in the present case.

Resultantly, this application for condonation of delay of 5 years 7 months and 9 days, is dismissed.

R.S.A. No. 480 of 2007

Since the application for condonation of delay has been dismissed, this appeal is held to be time barred and is ordered to be dismissed.