Rulia Singh and Another vs Amro Bai and Others

Swatanter Kumar, J.—This regular second appeal is directed against the concurrent finding of facts and conclusion arrived at by the learned courts below. The learned first appellate Court, while affirming the decree of the learned trial Court dated 22.11.1996, dismissed the suit of the plaintiffs for declaration. It was averred by the plaintiffs that they are the sons of Mangh Singh. According to them, Sunder Singh had died more than 30 years back and they had been in cultivating possession through their ancestors and in a family settlement Kishnai Bai gave them the land in question. However, subsequently, a week prior to filing the suit they came to know that Kishnai Bai in a collusive decree dated 21.4.1992 had given the land in question to Amro Bai, defendant No. 1. The decree being ineffective, they claimed to be owner of the land in possession. The suit was contested by the defendants. Learned trial Court framed four issues and held all the issues against the plaintiffs, as the plaintiffs had failed to prove any cogent and reasonable evidence in support of the case. These findings were affirmed by the learned first appellate Court giving rise to the present second appeal.

This regular second appeal is barred by time and an application u/s 5 of the Limitation Act for condonation of 296 days'' delay has been filed. Thus, I am obliged to deal with the contents of the application u/s 5 of the Limitation Act for condonation of delay. This application being CM. No.566-C of 1999 reads as under:-

"1. That the accompanying appeal is being filed in this Hon''ble Court which is most likely to succeed on the grounds taken therein.

That the present appeal was drafted in the month of August, 1998 for filing in this Hon''ble Court, however, there was some possibility between the parties as such the appellants instructed their counsel not to file appeal and wait for further instruction to await the efforts being made by the respectable of the village regarding the compromise between the parties. However, in spite of the best efforts made by the appellant as well as the respectables of the village, no compromise could be effected as such the appellants are left with no other alternative to approach this Hon''ble Court by way of filing the present appeal. Under these circumstances the delay of 296 days in filing the present appeal has occurred which is neither intentional nor wilful but under the circumstances explained above.

That the appellants have a very good case on merits and if the delay in filing the present appeal is not condoned the appellant shall suffer an irreparable loss.

It is, therefore, respectfully prayed that the delay of 296 days in filing the present appeal may kindly be condoned and appeal be heard on merits in the interest of justice.

Note: Affidavit attached."

The application does not disclose any cause much less a sufficient cause for condonation of delay. The law of limitation cannot be applied so liberally that it renders a vested right in another party ineffective. Bona fide and sufficient cause in a condition precedent to the condonation of delay. The Hon''ble Supreme Court of India in the case of P.K. Ramachandran Vs. State of Kerala and Another, , has held as under:-

"Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

Applying the above said principles, I have no hesitation in coming to the conclusion that the above application does not show any cause whatsoever for condoning the delay. The applicants have acted totally negligently and have given a definite right to the opposite side. Having no merits in this application. I would decline to condone the delay of 296 days in filing the present appeal,

As the application u/s 5 of the Limitation Act is dismissed, the appeal does not survive for consideration.