Allahabad High Court
Zulfaqar Alias Zulfiqar Ali vs Rakesh Kumar Jain on 25 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:173268
HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL DEFECTIVE No. - 730 of 2025
Zulfaqar Alias Zulfiqar Ali
.....Appellant(s)
Versus
Rakesh Kumar Jain
.....Respondent(s)
Counsel for Appellant(s)
:
Jitendra Shanker Pandey, Pankaj Agarwal
Counsel for Respondent(s)
:
Ishir Sripat
Court No. - 35
HON'BLE SANDEEP JAIN, J.
Order on Civil Misc. Delay Condonation Application No.1 of 2025:-
1. Heard Sri Sanjeev Singh and Sri Jitendra Shanker Pandey learned counsel for the appellant and Sri Ishir Sripat learned counsel for the respondent.
2. According to the office report, there is delay of 36 days in filing the appeal.
3. Learned counsel for the appellant submits that the appellant is a 65 years old man who was suffering from various ailments and he remained bedridden from 01.01.2025 till 15.05.2025 and after he got fit on 16.05.2025, then on 17.07.2025, the instant appeal was filed with delay. He further submits that the appellant has filed various prescriptions of doctor which conclusively prove that the appellant was suffering from piles and serious throat disease who was bedridden and, as such, was disabled from initiating any legal action against the impugned order dated 19.02.2025 passed by the trial court.
4. Learned counsel for the appellant further submitted that the appellant has filed an affidavit in support of the delay condonation application. He submits that in view of the above facts, the delay in filing the instant appeal be condoned and the appeal thereafter be admitted and decided on merits, since vital interest of the appellant is involved in this case.
5. Per contra, learned counsel for the respondent submitted that the appellant has submitted a false excuse of illness which was not supported by the documentary evidence. He further submitted that after the passing of the impugned order dated 19.02.2025, the appellant filed a suit for similar relief before the Civil Judge (J.D.) on 25.02.2025, in which, the appellant obtained an exparte injunction order under Order 39 Rule 3 C.P.C. against the respondent. The respondent on being aware of that order challenged it by filing an application under Order 39 Rule 4 CPC, for vacating that order which was allowed by the court below on 05.05.2025. Thereafter, the appellant filed Misc. Appeal No.42 of 2025 before the court of District Judge, Muzaffarnagar, in which, the appellant did not get any interim injunction, as such, the appellant challenged that order by filing a Writ Petition under Article 227 of the Constitution of India before this Court on 02.06.2025, in which, the appellant personally filed an affidavit on 31.05.2025.
6. Learned counsel for the respondent submitted that all the above facts amply proved that the appellant was feigning illness. The explanation submitted by the appellant is palpably false and malafide and has been made to mislead the Court. He further submitted that the facts amply prove that the appellant is not entitled to any indulgence by this Court. With these submissions, it was prayed that the delay condonation application be rejected.
7. The appellant has filed the rejoinder affidavit, in which it has been submitted that the proceedings initiated by the appellant in the lower court after the passing of the impugned order on 19.02.2025 was by another person, on behalf of the appellant. It was also submitted that the appellant became healthy on 16.05.2025 and thereafter he went to this Court and filed a Writ Petition under Article 227 of the Constitution of India, regarding which, no adverse inference could be drawn. He further submitted that it is well settled that substantial justice should be done and the matter could not be decided on technicalities. He further submitted that the impugned order is perverse and warrants interference by this Court in exercise of its appellate jurisdiction and the delay in filing the present appeal be condoned and the matter be heard and decided on merits.
8. Per contra, learned counsel for the respondent submitted that even on merits, the appellant does not deserve any indulgence from this Court because the appellant is himself the executant of the sale deed dated 17.01.1994, and for cancelling the same, the appellant filed O.S. No.684 of 2008 on 14.07.2008 which is grossly time barred. He further submitted that since the appellant is himself the executant of the sale deed, he cannot take a plea that he was ignorant of that sale deed, as such, even on this ground the suit is time barred.
9. I have heard extensively learned counsel for the parties and perused the record.
10. It is apparent that the impugned order was passed on 19.02.2025, whereby the defendant's application under Order 7 Rule 11(d) CPC was allowed and the plaintiff's suit for cancelling the sale deed dated 17.01.1994 was rejected on the ground that the suit was grossly barred by limiation. The trial court has recorded a specific finding that the suit was filed after about 14 years after the execution of the sale deed and since the sale deed was executed by the plaintiff, he was well aware of it.
11. This Court is conscious that while disposing the application for condoning a delay, the matter should not be examined on merits.
12. It is apparent that the impugned order was passed on 19.02.2025, which was challenged before this Court on 17.07.2025. It is apparent that the appellant is taking a plea that he remained seriously ill, bedridden during the period from 01.01.2025 till 15.05.2025 on account of being suffering from piles and serious throat disease. The appellant has filed the prescription of the doctor, which prima facie discloses that he remained bedridden from 01.01.2025 till 15.05.2025 but the document submitted by the respondent also shows that after passing of the impugned order on 19.02.2025, the appellant filed O.S. No.105 of 2025, Zulfaqar @ Zulfiqar Ali versus Rakesh Kumar Jain, on 25.02.2025, before the court of Civil Judge (J.D.), Muzaffarnagar for the relief of permanent injunction, in which, the appellant personally appeared on 12.03.2025, 25.03.2025, 03.04.2025, 11.04.2025, 17.04.2025 and 13.05.2025.
13. It is also apparent that the plaintiff obtained exparte injunction order under Order 39 Rule 3 CPC against the defendant-respondent on 25.02.2025, which was challenged by the defendant-respondent by filing application under Order 39 Rule 4 CPC, which was allowed by the trial court on 05.05.2025 and the exparte injunction order granted in favour of the plaintiff-appellant was vacated. Aggrieved against which, the appellant preferred Misc. Appeal No.42 of 2025, Zulfaqar Alias Zulfiqar Ali Vs. Rakesh Kumar Jain, on 09.05.2025, before the court of District Judge, Muzaffarnagar, in which, no injunction order was granted in favour of the plaintiff-appellant, as such, the plaintiff again approached this Court by filing the Writ Petition No.6013 of 2025 under Article 227 of the Constitution of India on 02.06.2025, in which, the appellant also submitted his affidavit dated 31.05.2025.
14. The above facts falsify the plea of the appellant that he remained ill during 01.01.2025 till 15.05.2025. It is well settled that the person seeking indulgence of this Court should approach this Court with clean hands, bonafidely but in this case, the appellant has come before this Court with false plea and malafide intention, as such, the appellant is not entitled to any indulgence from this Court.
15. The cause shown for the appellant for filing the instant appeal with delay is neither sufficient nor bonafide, as such, this Court is not inclined to condone the delay in filing the instant appeal.
16. It is also apparent that even on merits, the appellant is not entitled to any relief from this Court because the appellant is himself the executant of the sale deed dated 17.01.1994 and for its cancellation the appellant has filed O.S. No.684 of 2008 on 14.07.2008, which is hopelessly time barred. This Court is conscious that the issue of limitation is a mixed question of fact and law and ordinarily it should not be decided while disposing the application under Order 7 Rule 11 CPC.
17. It has been held by the Apex Court in the case of Raghwendra Sharan Singh vs. Ram Prasanna Singh(Dead) By LRs. (2020)16 SCC 601 and Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through LRs. & Others (2020)7 SCC 366, that considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) CPC.
18. In view of this, even on merits the order of the trial court cannot be challenged.
19. In view of the above, the delay condonation application is rejected. Consequently, the appeal is also dismissed being time barred.
20. However, in the facts and circumstances of the case, the parties shall bear their respective costs.
21. Office is directed to prepare the decree accordingly.
(Sandeep Jain,J.) September 25, 2025 Himanshu