Smt. Jogi and Others vs Dil Kuwar and Others

Nawal Kishore Agarwal, J.—Instant Second Appeal filed u/s 100 of CPC is directed against the order dated 27.07.2001, passed by the 1st Additional District Judge, Ambikapur, in Civil Appeal No. 20-A/99, whereby and whereunder the first appeal preferred by the defendants has been dismissed as time barred. The appeal is admitted for hearing on following substantial question of law:

Whether the first appellate court was justified in dismissing the appellant''s appeal as time barred ignoring the contents of application and affidavit annexed therewith?

Brief facts, necessary for disposal of the case are that: respondents plaintiffs filed a suit for declaration of their title over the suit land and for permanent injunction. The trial court framed issues and parties led their evidences. The Trial court, finding inter alia, plaintiffs have proved their case, decreed the plaintiffs suit. There-against, first appeal was preferred by the appellants herein which was barred by 57 days.

The first appellate court dismissed the defendant''s application for condonation of delay in filing the appeal and consequently the appeal was also dismissed. Hence this Second Appeal.

I have heard the counsel appearing for the parties and perused the records of both the courts below including impugned order.

The appellants herein in the application u/s 5 of the Limitation Act for condonation of delay in filing the appeal have stated that: they are rustic illiterate villagers; their. Advocate did not give any intimation to them regarding judgment and decree dated 27.11.1998, passed by 1st Civil Judge, Class II, Ambikapur in Civil Suit No. 62-A/98; only on 14.01.1999 it was noticed by the appellants through Clerk of Court that decree has been passed against them on 27.11.1998; thereafter they applied for certified copy of the order and received the same on 20.01.1999 and the appeal has been filed on 29.01.1999.

Prayer was opposed by the respondent No. 2.

The first appellate court holding that the appellants have failed to explain each and every day of delay in filing the appeal, dismissed the application for condonation of delay and consequently appeal was also dismissed.

It is trite law that the approach of court should be liberal while dealing with application for condonation of delay.

Apparently, the appellants are rustic villagers. As per their affidavit filed in support of application for condonation of delay, their Advocate did not inform them about judgment and decree. The said fact was noticed by them through Clerk of Court and thereafter they applied for certified copy of the order and received the same on 20.01.1999 and filed the appeal on 29.01.1999.

The Supreme Court in case of N. Balakrishnan Vs. M. Krishnamurthy, , has held in para 13 to 15 as under:

Rules of limitation are not meant to destroy the right of parties. They are meant to se 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. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the remedy vested time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest republican up sit finis lithium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right 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 of 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" u/s 5 of Limitation Act should receive a liberal construction so as to advance substantial justice vide Shankuntala Devi Jain v. Kuntal Kumari and State of West Bengal v. The Administrator, Howrah Municipality.

It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses, it would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.

In view of above, the delay occurred in filing the appeal before the First Appellate Court appears to be bonafide and order of rejection of application by the First Appellate Court is not sustainable in law.

For the reasons mentioned hereinabove, the substantial question of law formulated by this court is answered in appellant''s favour. The appeal is allowed. The order impugned dated 24.07.2001 passed by the first appellate court is hereby set aside. Application filed by the appellants before the first appellate court for condonation of delay in filing the appeal deserves to be and is hereby allowed and consequently delay is condoned. The matter is remitted back to the first appellate court to hear and decide the appeal on its own merits in accordance with law expeditiously.

Records of both the courts below be sent back to the first appellate court forthwith.

The parties are directed to appear before the first appellate court on 04.04.2012.

No order as to costs. Decree be drawn accordingly.