Gopal v. Virjiniya Dead Through Lrs And Others

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.

of 201 Gopal, S/o Bolo, age about 55 years, Caste Uraon, R/o village Nakbar, Tahsil Bagicha, District Jashpur (C.G.) ---- Appellant

Versus

1. Virjiniya, w/o Michu (S/o Pirchu), aged about 65 years.

2. The State of Chhattisgarh, through Collector, District Jashpur (C.G.) ---- Respondents For Appellant : Mr. A.K. Prasad, Advocate.

For respondent No.1 : Mr. Ashish Beck, Advocate. For respondent No. 2 : Mr. Neeraj Jain, Govt. Advocate. Hon'ble Shri Justice Sanjay K. Agrawal Order On Board /0 6 /201 (1) The substantial question of law formulated and to be answered by this Court in the plaintiff's second appeal is as under:- "Whether the court below has erred in not condoning the delay ocurred in filing the appeal and thereby in dismissing the appeal on the above ground ?"

[For sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court] (2) The plaintiff's/appellant suit for declaration of title and permanent injunction was dismissed by the trial Court on 16.03.2011.

(3) The plaintiff preferred first appeal there-against before the first Appellate Court along with an application for condoning the delay of 32 days in filing the said appeal stating that copy of judgment & decree passed by the trial Court obtained was lost and after obtaining second copy of the same, first appeal was preferred on 4.7.2011. (4) The first appellate Court, vide its impugned order 13.01.2012, has dismissed the first appeal holding that no sufficient cause has been shown for delay in filing the appeal.

(5) Impugning the legal acceptability and sustainability of the order 14.09.2011 passed by the First Appellate Court, the second appeal under Section 100 of the CPD has been preferred by the plaintiff (appellant herein), which has been admitted for final hearing on the substantial question of law as stated in opening paragraph of this judgment. (6) Mr. A.K. Prasad, learned counsel appearing on behalf of the appellant/plaintiff would submit that the First Appellate Court has committed grave illegality in holding that no sufficient cause has been shown in preferring the appeal under Section 96 of the CPC, whereas, Mr. Ashish Beck, learned counsel for respondents/defendants would submit that the First Appellate Court has rightly rejected the application under Section 5 of the Limitation Act the thereby dismissal of first appeal is well merited.

(7) I have heard learned counsel appearing for the parties and perused the records of both the Courts below with utmost circumspection.

(8) It is true that there was delay of 32 days in filing the appeal but fact remains that plaintiff, on his own affidavit, has stated that copy of judgment & decree obtained was lost and thereafter second copy of the judgment & decree was applied for and after obtaining the same, the first appeal was preferred on 4.7.2011 and, therefore, he could not prefer the appeal within the prescribed period of limitation. (9) It is well settled law the Courts should adopt an justice-oriented approach in considering the application for condonation of delay. However, the Court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963.

Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. (10) In case of N. Balakrishnan V. M. Krishnamurthy1, it has been held by the Supreme Court that the sufficient cause has to be construed liberally especially when the delay is not deliberate and malafide. Relevant portion of the report held as under:- "11. Rules of limitation are not meant to destroy the right of parties. They are meant to see 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit.

remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium ( it is for the general welfare that a period be putt to litigatin). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilaory tactics but seek their remedy promptly. The idea is that every legal remedy must be kep alive for a legislatively fixed period of time.

12. A court knows that refusal to 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" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 Sc 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]."

(11) Recently, the Supreme Court in the case of Esha Bhattacharjee V. Managing Committee of Raghunathpur Nafar Academy and others2 has laid down the principles for deciding application for condonation of delay, which has been followed by this Court in case of JT 2013 (2) SC 450

Pradeep Majumdar V. Duvas Bai and others3. Para 21 of the Esha Bhattacharjee(Supra) states as under:- "21. From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, nonpedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

2013 (4) B.L.J. 433

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude." (12) Keeping in view the principles laid down in the above-stated cases, the facts of the instant case is examined, I find from the record that the plaintiff was appearing in the trial diligently and

seriously contested the suit and due to loss of first certified copy of the judgment & decree passed by the trial Court, he could not prefer the appeal within the period prescribed under the Limitation Act. It is neither deliberate and nor out come of malafide action and the cause shown for delay in filling the application is an a "sufficient cause" within the meaning of Section 5 of the Limitation Act.

(13) This Court is of the considered opinion that the First Appellate Court has committed illegality in rejecting the application under Section 5 of the Limitation Act. The impugned order/judgment dated 13.01.2012 is hereby set aside. The delay in filing the appeal is condoned. The First Appeal (Gopal Vs. Virjiniya & others) is restored to the original file of District Judge, Jashpur for hearing and disposal of appeal on merits in accordance with law. (14) The parties are directed to appear before the District Judge, Jashpur on 14.07.2015. The First Appellate Court is directed to decide the appeal on merits expeditiously as the judgment & decree of the trial Court was passed way back on 16.03.2011. Sd/- (Sanjay K. Agrawal) Judge D/-