Sarla Gupta vs State of U.P. and Others

Mahendra Dayal, J.—Heard Shri Shafiq Mirza, learned counsel for the appellant and Sri Sharad Kumar Shukla who has appeared on behalf of the respondent.

This appeal has been filed assailing the judgment and order dated 11.11.2010 passed by the Additional District Judge, Sitapur in Civil Miscellaneous Case No. 161 of 2008, whereby the application of the appellant for condonation of delay in filing the first appeal has been dismissed.

This Court vide order dated 11.02.2011 admitted the second appeal on substantial question of law Nos. 1 and 5, which are reproduced as under:-

"(1) As to whether the court below violated the provisions of Section 5/14 of the Limitation Act while refusing the statutory benefit for condonation of delay, provided therein, to the appellant?

(5) As to whether the appeal under section 96 C.P.C. was not maintainable in the court of District Judge?"

The brief facts giving rise to the second appeal are that the plaintiff-appellant filed a suit for mandatory injunction against the respondent Nos. 1 to 3 directing them to remove their possession from the disputed plot and pay compensation in accordance with the provisions of Land Acquisition Act along with the interest of 24% per annum. The said suit was dismissed by the learned trial court vide judgment and decree dated 20.03.2001.

Feeling aggrieved by the dismissal of the suit, the plaintiff-appellant preferred writ petition N0.8266 (M/B) of 2008 before this Court which was dismissed on 15.09.2008 but a liberty was given to the plaintiff-appellant to file appeal against the judgment and decree of the trial court along with an application for condonation of delay. It was directed that the appellate court shall consider the said application sympathetically keeping in mind the observations made in the judgment.

In pursuance of the order of this Court dated 15.09.2008, the plaintiff-appellant preferred an appeal along with an application for condonation of delay, but by the impugned order dated 11.11.2010, the application for condonation of delay was rejected.

Sri Shafiq Mirza, learned counsel for the appellant submits that although first appeal should have been filed against the judgment and decree of the trial court dated 20.03.2001, whereby the suit was dismissed with cost but on the legal advice, the plaintiff-appellant preferred writ petition before this Court assailing the judgment and order of the trial court. During the course of hearing of the writ petition it was felt that instead of filing the writ petition before this Court, the plaintiff-appellant ought to have preferred first appeal before the District Judge against the dismissal of a suit. Since the plaintiff-appellant persuaded the matter before this Court under wrong legal advice, therefore, at the time of dismissal of the writ petition, the learned counsel made a request to this Court that an observation be made to the effect that the application of the plaintiff-appellant for condonation of delay may be considered sympathetically and accepting the request made on behalf of the appellant, this Court observed that the plaintiff-appellant may seek condonation of delay in filing the appeal by giving appropriate explanation and the appellate court was also directed to consider the said application sympathetically keeping in mind the observations made in the order.

The submission of Sri Shafiq Mirza is that in the application for condonation of delay the plaintiff-appellant sufficiently explained the delay that under wrong legal advice, she preferred the writ petition but since the proper remedy was to file an appeal, therefore, immediately after dismissal of the writ petition, an application for condonation of delay was moved.

Learned counsel for the appellant has also referred to Section 14 of the Indian Limitation Act which provides that 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.

The submission on behalf of the appellant is that since the plaintiff-appellant was a house-wife and was not aware of the relevant provisions of law, therefore, she acted on the advice of her counsel and as per the advice given by her counsel, she filed a writ petition before this Court. Since the relief prayed by the plaintiff-appellant could not have been granted by this Court while exercising writ jurisdiction under Article 226 of the Constitution of India, therefore, she preferred an appeal before the first appellate court as observed by this Hon''ble Court. In these circumstances, the appellant was entitled to get the benefit of Section 14 of the Act. Moreover, the courts should adopt liberal approach while considering the matter of condonation of delay. It has been held in a series of decision by this Court as well as by the Hon''ble Supreme Court that the court should adopt liberal approach while considering the application for condonation of delay unless it is found that the person seeking condonation of delay was highly negligent or there was malafide intention on his part to delay the proceedings.

Learned counsel has referred to a latest decision of the Hon''ble Supreme Court reported in LCD 2014 Vol. 32 page 1. In this case the Hon''ble Supreme Court has held that the power to condone the delay has been conferred upon the courts to enable them to do substantial justice with the parties by disposing of the case on merit and not to penalize any party for her laches. The reason given by the Hon''ble Supreme Court is that ordinarily, a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. When the delay is condoned, the highest that can happen is that a case will be decided on merits after hearing the parties. The Hon''ble Supreme Court has further clarified that the term ''every day''s delay must be explained'', does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common sense and pragmatic manner. There can be no presumption that delay is occasioned deliberately. The judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. This observation of the Hon''ble Supreme Court has been followed in various decisions by this Court as well as by other High Courts.

Learned counsel appearing on behalf of the respondents has, on the other hand, submitted that the trial court dismissed the suit of the plaintiff-appellant on 20.03.2001 and for a period of more than seven years the plaintiff-appellant did nothing and in the year 2008, she filed the writ petition before the High Court. There is no explanation as to for a long period of seven years what she had been doing in order to get justice. Since the plaintiff-appellant filed the writ petition after a gap of seven years, therefore, the benefit of Section 14 of the Limitation Act can not be given to the plaintiff-appellant for the simple reason that she did not opt for any remedy for a period of seven years. It has further been submitted that there is no explanation as to why the writ petition was filed after a gap of seven years. Since it was directed by the Hon''ble High Court while dismissing the writ petition that the plaintiff-appellant should give satisfactory explanation before the court below, therefore, it was incumbent upon the plaintiff-appellant to explain the delay by giving sufficient explanation but since the plaintiff-appellant failed to give any satisfactory explanation, therefore, the learned court below has rightly rejected the application of the plaintiff-appellant for condonation of delay.

Learned counsel for the respondents has relied upon a decision of the Hon''ble Supreme Court rendered in the case of Brijesh Kumar and others v. State of Haryana and others in which the Hon''ble Supreme Court refused to condone the delay of ten years and two months on the ground that the High Court also did not find any sufficient ground to condone the delay.

The submission of the learned counsel for the respondents is that there is a distinction between inordinate delay and the delay of short duration. In the case of inordinate delay the doctrine of prejudice is attracted, whereas in the cases of delay of short duration, the doctrine of prejudice is not attracted. It has been held by the Hon''ble Supreme Court in several cases that the delay must be sufficiently explained and unless the delay is sufficiently explained, the delay should not be condoned.

Reliance has been placed upon a judgment of the Hon''ble Supreme Court reported in 1981 A.Cr.R., page 104 in which the Hon''ble Supreme Court has held that a party is entitled to wait until the last day of the limitation but when it allows limitation to expire and pleads sufficient cause, the sufficient cause must establish that because of some event or circumstance arising before limitation expired, it was not possible for him to file suit or appeal within time.

On perusal of the record, I find that in the application seeking condonation of delay the plaintiff-appellant had taken a ground that she was an aged woman suffering from various ailments like heart disease, diabetic etc. and she was confined to bed for about five years. It was further stated that after the order of the Hon''ble High Court dated 15.09.2008, a certified copy thereof was obtained and then a counsel was engaged. After that the appeal was prepared and was filed in the court. The application for condonation of delay was opposed on the ground that the appeal was filed after seven years of the judgment of the trial court and no sufficient explanation has been given for condonation of delay. The learned court below after considering the submissions made on behalf of the parties and referring various pronouncements on the subject, did not find any sufficient ground to condone the delay and rejected the application filed under section 5 of the Limitation Act.

Learned counsel for the appellant has emphasized on that part of the order of this Court which directed the court below to consider the application for condonation of delay sympathetically in the light of observations made in the judgment. The learned court below ignoring the aforesaid directions of this Court did not consider the background in which the writ petition was preferred and thereafter the appeal was filed. The plaintiff-appellant claiming herself to be the owner of the plot No. 185, Elgin Road, Sitapur filed the suit for mandatory injunction either to remove possession from her plot or give compensation thereof. The suit was contested by the respondents and the learned trial court recorded a finding that the plaintiff-appellant could not prove her ownership over plot No. 185. The appellant approached this Court by way of filing writ petition to seek a direction for payment of compensation but this Court found it proper that instead of seeking her remedy by way of writ petition, appellant should challenge the judgment and decree of the trial court by which she was held not the owner of the disputed property. In the aforesaid circumstances, if the appeal of the plaintiff-appellant is not heard on merit, she would be deprived of her plot and in case she is able to prove her ownership before the first appellate court she will also loose her right to get compensation. The learned court below without considering this aspect of the matter, rejected the application for condonation of delay on technical ground that the plaintiff-appellant has not been able to explain the delay. This approach should not have been adopted by the learned court below especially when there was a direction of this Court to consider the matter of condonation of delay sympathetically in the light of the observations made in the judgment. As held by the Hon''ble Supreme Court, the courts should adopt liberal approach while considering the matters of condonation of delay unless it is shown that there was deliberate delay on their part. In the present case, the respondents have failed to show any reason as to how the plaintiff-appellant could be benefited by not filing the appeal within time. There is also no denial of the fact that the plaintiff-appellant is an aged lady suffering from various ailments and she was confined to bed since last several years. Her land has been taken away by the respondents without paying any compensation. In these circumstances, the matter requires consideration and it is necessary that her appeal may be heard on merit after condoning the delay.

In the result, the substantial question of law No. 1 is decided in the manner that the learned court below did not consider the provision of Section 14 of the Limitation Act while refusing the statutory benefit for condonation of delay.

So far as the substantial question of law No. 5 is concerned, the appeal against the judgement and decree of the trial court was maintainable under Section 96 C.P.C. before the District Judge.

In the result, the second appeal is allowed and the judgment and order dated 11.11.2010 is set aside. The delay in filing the appeal is hereby condoned. The learned court below shall hear the parties on appeal and decide the same on merit in accordance with law.

Second appeal is allowed. There will be no order as to cost.