Chattisgarh High Court
Sureshchand vs Shyammani on 23 November, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.23 of 2019
• Sureshchand, S/o Late Shatruhanlal, Aged About 63 Years, Caste -
Bramhan, Cultivator, R/o Village - Kera, Tahsil Nawagarh, District
Janjgir-Champa, Chhattisgarh. (Plaintiff
---- Appellant
Versus
1. Shyammani, S/o Late Bharatlal, Aged About 55 Years, At Present
Address - Gondpara, In front of Punjabi Dharaamsahala, Near Flour
Mill, Bilaspur, Chhattisgarh.
2. Rajendra Prasad, S/o Late Bharatlal, Aged About 53 Years, By Caste -
Bramhan, R/o Village Kera, Tahsil - Nawagarh, District Janjgir-
Champa, Chhattisgarh.
3. Pramod Kumar, S/o Late Shri Narhari Prasad Aged About 50 Years By
Caste - Bramhan, R/o Village Kera, Tahsil - Nawagarh, District Janjgir-
Champa, Chhattisgarh.
4. Manoj Kumar, S/o Late Shri Narhari Prasad Aged About 465 Years By
Caste - Bramhan, R/o Village Kera, Tahsil - Nawagarh, District Janjgir-
Champa, Chhattisgarh.
5. Smt. Meena Bai, Wd/o Late Shri Narhari Prasad, Aged About 68 Years
By Caste - Bramhan, R/o Village Kera, Tahsil - Nawagarh, District
Janjgir Champa Chhattisgarh.
6. Ramesh Chandra, S/o Late Shri Shatruhanlal, Aged About 59 Years
(deadf, through Lrs.
(af. Smt. Sarojani W/o Late Rameshchandra Shukla, resident of Bagchi
Colony, Shubham Vihar, Bilaspur (C.G.f.
(bf. Alok Shukla, S/o Late Rameshchandra Shukla, resident of Bagchi
Colony, Shubham Vihar, Bilaspur (C.G.f.
7. State of Chhattisgarh Through The Collector, District Janjgir-Champa,
Chhattisgarh.
--- Respondents
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For Appellant : Shri Suyash Dhar, Advocate For Respondents No.1 & 2 : Shri Ravindra Sharma, Advocate 2 For State : Shri Tarkeshwar Nande, P.L.
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Hon'ble Shri Justice Arvind Singh Chandel Order on Board 23/11/2022
1. The substantial question of law formulated and to be answered by this Court in the instant second appeal is as under:
"Whether the First Appellate Court is justifed in dismissing the frst appeal on the ground of delay be recording a perverse fnding that sufcient cause has not been shown for delay of 59 days?"
2. The trial Court, by its judgment dated 28/03/2014 passed in Civil Suit No.12-A/2014 has partly allowed and decreed the suit in favour of the plaintif/appellant herein with respect to Khasra No.1554 rakba 1.04 acre, Khasra No.1552, rakba 0.17 acre, and Khasra No.1572/1 rakba 0.47 acre situated at village Kera, District
- Janjgir-Champa (C.G.f and rejected the suit with respect to land bearing Khasra No.750/2 rakba 0.32 acre.
3. Being aggrieved and dissatisfed with the judgment and decree passed by the trial Court, the plaintif/appellant preferred frst appeal before the First Appellate Court i.e. First Additional District Judge, Janjgir-Champa, (C.G.f along with an application under Section 5 of the Limitation Act i.e. an application for condonation of delay in fling the appeal as the appeal was barred by 59 days. Vide order dated 08.10.2018, the First Appellate Court rejected the application for condonation of delay. Hence, the second appeal has been fled by the plaintif/appellant which has 3 already been admitted for fnal hearing on the substantial question of law as mentioned in paragraph 1 of this order.
4. Learned Counsel for the plaintif/appellant submits that First Appellate Court has committed grave illegality in holding that no sufcient cause has been shown in preferring the appeal under Section 96 of the C.P.C., whereas learned Counsel for respondents/defendants would submit that the First Appellate Court has rightly rejected the application fled under Section 5 of the Limitation Act and thereby dismissal of frst appeal is well merited.
5. I have heard learned Counsel appearing for the parties and perused the records of both the Courts below with utmost circumspection.
6. It is true that there was delay of 59 days in fling the appeal but facts remains that plaintif/appellant contested the suit right from 21.09.2004 to the date of judgment of the trial Court i.e. 28.03.2014. There is also no dispute on the point that after submission of the suit before the trial Court, the plaintif/appellant has regularly appeared before the trial Court either through counsel or personally and the appeal is delayed by 59 days.
7. It is well settled law that the Courts should adopt a justice-
oriented approach in considering the application for condonation 4 of delay.
8. The Supreme Court in the case of Esha Bhattacharjee v.
Managing Committee of Raghunathpur Nafar Academy and Others JT 2013(2) SC 450 has laid down the principles for deciding the application for condonation of delay. Paragraph 21 of the Esha Bhattacharjee (supra) states as under:-
"21. From the aforesaid authorities the principles that can broadly be culled out are:
if There should be a liberal, pragmatic, justice-oriented, non-pedantic 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.
iif The terms "sufcient 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.
iiif Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
ivf 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.
vf Lack of bona fdes imputable to a party seeking condonation of delay is a signifcant and relevant fact.
vif It is to be kept in mind that adherence to strict proof should not afect 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.
viif The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viiif 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 frst one warrants 5 strict approach whereas the second calls for a liberal delineation.
ixf 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.
xf If the explanation ofered 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.
xif 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.
xiif 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.
xiiif The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
9. Keeping in view the principles laid down in the above-stated cases, the facts of the instant case is examined. I fnd from the record that the suit was fled by the plaintif/appellant right from 21.09.2004 and the suit was decided by the trial Court on 28/03/2014. On perusal of order-sheets, it appears that appellant was regularly appearing before the trial Court either through counsel or personally and the appeal fled by the plaintif/appellant is delayed by 59 days only. Though the plaintif/appellant has not given any detailed reason for delay of 59 days but considering the fact that appeal is delayed by only 59 days, it is neither deliberate and nor out come of malafde action and the cause shown for delay in fling the application is a "sufcient cause" within the meaning of Section 5 of the 6 Limitation Act.
10. 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 08/10/2018 passed by the First Appellate Court is hereby set-aside. The delay in fling the appeal is condoned. The First Appeal (Sureshchand Vs. Shyammani & Othersf is restored to the original fle of First Appellate Court, Janjgir-Champa (C.G.f for hearing and disposal of appeal on merits in accordance with law subject to payment of cost of Rs.3,000/- payable to the counsel for respondents No.1 to 6.
11. Parties are directed to appear before the First Additional District Judge, Janjgir-Champa on 12.12.2022. The First Appellate Court is directed to decide the appeal on merits expeditiously.
12. A decree be drawn accordingly.
13. With the aforesaid direction, the appeal is disposed of.
Sd/-
(Arvind Singh Chandelf Judge Prakash