Madhya Pradesh High Court
The State Of Madhya Pradesh vs Amrit Lal Jyotashi on 11 January, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 11th OF JANUARY, 2024
SECOND APPEAL No. 723 of 2017
BETWEEN:-
1. STATE OF MADHYA PRADESH THR.
ITS SECRETARY REVENUE
DEPARTMENT BHOPAL (MADHYA
PRADESH)
2. STATE OF MADHYA PRADESH
THROUGH ITS COLLECTOR
JABALPUR, DISTT. JABALPUR
(MADHYA PRADESH)
3. ADDITIONAL COLLECTOR/
COMPETENT AUTHORITY URBAN
LAND CEILING OFFICER, JABALPUR
(MADHYA PRADESH)
4. TEHSILDAR (NAZUL) JABALPUR
JABALPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ADITYA CHOUBEY - GOVERNMENT ADVOCATE)
AND
1. AMRIT LAL JYOTASHI S/O LATE SHRI
GIRDHARI LAL JYOTASHI, AGED
ABOUT 66 YEARS, H.NO.1758 RANI
DURGAWATI WARD JABALPUR
(MADHYA PRADESH)
2. SMT. PREETI TIWARI W/O PRADEEP
TIWARI, D/O GHANSHYAMDAS
JYOTASHI, AGED ABOUT 42 YEARS,
R/O 1758, RANI DURGAWATI WARD,
GARHA TEH.AND DIST. JABALPUR
(MADHYA PRADESH)
3. SMT SADHNA MISHRA W/O
LAVKUMAT MISHRA, AGED ABOUT 50
YEARS, R/O CHANDAN COLONY, NEAR
GUPTA KIRANA STORE, GANGA
2
NAGAR, GARHA, JABALPUR (MADHYA
PRADESH)
4. SMT. SANGEETA DIXIT W/O ANUJ
DIXIT, AGED ABOUT 41 YEARS, R/O
CHANDAN COLONY, NEAR GUPTA
KIRANA STORE, GANGA NAGAR,
GARHA, JABALPUR (MADHYA
PRADESH)
5. SMT. BABITA RAWAT W/O LATE
KAMALKANT, D/O GHANSHYAMDAS
JYOTASHI, R/O 541, SHITLAMAI
CHOUK, GHAMAPUR, JABALPUR
(MADHYA PRADESH)
6. ASHISH JYOTASHI S/O
GHANSHYAMDAS JYOTASHI, AGED
ABOUT 48 YEARS, R/O 1758, RANI
DURGAWATI WARD, GARHA TEH.AND
DIST. JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ABHIJEET AWASTHI - ADVOCATE)
This appeal coming on for admission this day, the court passed the following:
JUDGEMENT
Heard on the question of admission.
2. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants (hereinafter referred to as "defendants") against the respondents (hereinafter referred to as "plaintiffs") being aggrieved by the order dated 16/1/2017 passed by the VIth Additional District Judge, Jabalpur in Civil Appeal No. 243/16 rejecting the application for condonation of delay of 440 3 days in filing an appeal against Judgment and decree dated 21/9/2015 passed by XIth Civil Judge, Class - I, Jabalpur in Civil Suit No. 04-A/2012.
3. The case of plaintiff before the trial Court was that they are the owners of the land situated in village Garha of the KhasraNo150area l.052 hectare and in village Mohaniya No. 3/2 area l.708 hectare (hereinafter referred to as "the suit land"). The plaintiffs have claimed declaration of ownership and also for permanent injunction over thesuitland. Earlier the suit of the plaintiff was partly allowed and rest of the claims was rejected vide judgment and decree of trial court dated of this Court 30/9/2014. The Plaintiff filed an appeal the first appellate Court whichwas registered as Civil Appeal No. 27A/2014. Vide judgment and decree dated 30/6/2015, the learned First appellate court has allowed the appeal and remanded back the matter to the trial Court for decision afresh with the direction, that amendment be allowed and afforded opportunity to lead evidence. The learned trial Court after complying the directions adjudicated the matter afresh and passed judgment and decree dated 21/9/2015.
4. Against that judgment and decree of the trial Court dated 21/9/2015, the defendants had filed Civil Appeal No. 243/16 before the first appellate Court along with an application U/s 5 of the Limitation Act for condonation of delay of about 440 days in filing the first appeal.
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5. The first appellate Court by the impugned order has dismissed the application for condonation of delay consequently the civil appeal filed by the defendants under Section 100 of the Code of Civil Procedure.
6. It is submitted by the learned counsel for the defendants that the learned first appellate Court while deciding the application under Section 5 of the Limitation Act did not consider the sufficient cause and bonafide reasons mentioned in the application. It is held by the Hon'ble Supreme Court in catena of decision that the application under Section 5 of the Limitation Act should be considered liberally. The first appeal should not be dismissed on technical grounds of limitation. The defendants also relying on the judgment of this Court in the case of Salikram and Ors. Vs. Keshav and Ors. reported in 2012(1) MPHT409. In aforesaid case, this Hon'ble Court had allowed the application in similar circumstances. It is further submitted by learned counsel for the appellants/defendants that the learned first appellate Court did not consider the fact that appellants are the authorities of District of Madhya Pradesh and required official permission and other sanctions from the higher authorities to file the appeal before the Hon'ble Court and such sanctions required certain procedure to be followed which involved a lot of time and therefore, the delay in following the procedure should be considered by the Court as public interest is involved in the litigation. Suit filed by the plaintiff was not maintainable. Disputed land was a surplus land and that order was not 5 challenged by the plaintiff before the appellate authority. Therefore, it becomes final. The impugned order is perverse and is liable to be set aside.
7. Per contra, learned counsel for the respondents opposed the second appeal.
8. Heard learned counsel for the parties and perused the record.
9. The Second Appeal is filed under the provisions of Section 100 of CPC which provides that Second Appeal is entertainable by the High Court if it is satisfied that the case involves a substantial question of law. Section 101 of CPC provides that no second appeal shall lie except on the ground mentioned in section 100 of CPC.
10. As regards the scope to entertain Second Appeal, the Supreme Court in the case of Municipal Committee, Hoshiarpur Vs. Punjab SEB, reported in (2010) 13 SCC 216 has held that every question of law could not be permitted to be raised in Second Appeal, there ought to be substantial question of law for entertaining such appeal and such appeal is entertainable in very exceptional cases and on extreme perversity. It is a rarity rather than regularity but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, then Second Appeal should be entertained. In other words, perversity itself is a substantial question worth adjudication. Here in this appeal, it is to be seen as to 6 whether any perversity was committed by the Courts below and as to whether any substantial question of law is involved in this Second Appeal?
11. In the case of Jai Kishan vs. Sardari Lal, reported in AIR 2015 HP 93, Hon'ble Supreme Court has held in para no.13 as under :
"13. Learned counsel for the appellants would then argue that the findings recorded by the learned Courts below are perverse. I am afraid that this contention of the appellants cannot be accepted. What is perverse has been dealt with in detail by this Court in RSA No. 436 of 2000 titled Smt. Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.5.2015, in the following manner:
"(i) A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
(ii) If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the findings so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law.
(iii) If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, than the findings may be said to be perverse.
(iv) Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."7
12. In this Second Appeal, the re-appreciation of evidence and interference with the findings of fact are not permissible. It is to be seen whether a substantial question of law arises in this case or not ?
13. It reveals from the record that there is delay of 440 days in filing the first appeal and the application for condonation of delay filed before the first appellate Court does not clarify the causes of delay. Para 2 and 3 of this application are important and being reproduced as under :
"2. That, the appellant is being State, there is specific direction once an order passed by any court of law received by the local concerning office, and refer the matter and seeks instruction for further action. It is also submitted that the competent authority is posted in Bhopal, who is the competent to issue direction for further action, and according to that on received certify copy of judgment, the matter has been refer to competent authority for seeking instruction.
3. That, there is some delay in official process, and when instruction was received, the matter has been handed over and requested to filed appeal against the impugned judgment and decree passed on 21/9/2015. That being State, local authority is not competent to take any action without permission of the competent authority. Therefore, the delay in filing the present first appeal is purely based on official process and bonafides reasons."
14. Para 2 and 3 of the application clearly depicts that the delay was shown to be on account of following the procedure for appeal by the State but no specific dates have been mentioned that when the application for certified copy of the 8 impugned order dated 6/1/2017 has been filed and when that copy was taken by the defendants and then they moved the proposal for appeal before higher authorities and when the sanctions were granted at various levels and after getting sanction in what period the appeal is filed. Since the delay of 440 days is huge therefore, that was to be explained specifically and satisfactorily.
15. In para 5 of the impugned order, the first appellate Court has specifically mentioned that (i) Firstly, the certified copy of the Judgement and Decree dated 21/9/2015 is applied on 10/11/2016 after the prescribed period of limitation and no reason is mentioned as to why the copy was not applied for after passing of the Judgement and Decree within the prescribed period of limitation along with reason for condonation of delay. (ii) Secondly, it is not mentioned as to when and where it was sent for approval after receiving the certified copy belatedly alongwith reason for condonation of delay and no document is filed in this regard. (iii) Thirdly, it is not mentioned as to when the approval was received for filing the appeal alongwith reason for condonation of delay and no document is filed in that regard.
(iv) Fourthly, it also not mentioned that how much duration of time was consumed in preparation of the appeal and thereafter, the Appeal was filed on 5/12/2016 alongwith the reason for condonation of delay. There is delay of about 440 days in filing the Appeal and a casual explanation of delay has been furnished and from the aforementioned findings it is clear that the enormous and inordinate delay 9 caused has not been satisfactorily explained along with reason for condonation for delay by the Appellant.
16. In the case of Salikram (supra) this Court has considered that the appellant was a poor tribal and keeping in view the circumstances prevailing in that tribal district the delay was condoned. However, here in this case, the facts and circumstances are different. No specific dates of various steps taking towards filing of this appeal have been mentioned by the appellant in the application for condonation of delay filed before the first appellate Court. It is not stated in that application that what was the exact reasons for delay. Mere omnibus statement that delay was due to following the specific procedure is not a sufficient cause as contemplated in Section 5 of the Limitation Act and specially when the application for getting certified copy of the impugned order was filed after a period of 13.5 months (after the limitation period) itself shows that the appellant/plaintiff has acted in a highly irresponsible and negligent manner in filing the first appeal.
17. The words "sufficient cause" used in Section 5 cannot be liberally construed only because the party in default is the Government. Section 5 makes no distinction between the State and private individual or an institution when it has the need to establish sufficient cause. The doctrine of equality before law demands that the litigants including the State as the litigants are accorded the same treatment 10 and the law is administered in an even-handed manner. In considering the condonation of delay by the Government, the court should adopt a pragmatic approach. If the State fails to offer and explain sufficient cause, the delay may not be condoned. In the case of Hindusthan Petroleum Corporation Limited vs. Yashwant Gajanan Joshi reported in AIR 1991 SC 933 Hon'ble the Supreme Court has held that the petition was barred by limitation of 90 days and no satisfactory explanation of such delay was shown. The petition has been dismissed on the ground of delay alone by the Hon'ble Apex Court. In the case of Maniben Devraj Shah vs. Municipal Corporation reported in AIR 2012 SC 1629, it is held by Hon'ble Supreme Court that in cases involving State and its agencies while deciding the application for condonation of delay the fact that sufficient time is taken in decision making process of State can be taken note by Court but delay cannot be condoned as matter of course on ground that dismissal will cause injury to public interest when the delay is due to total lethargy or utter negligence of its officers.
18. In case of State of U.P. through Executive Engineer and anr. Vs. Amarnath Yadav reported in (2014)2 SCC 422 Hon'ble Supreme Court while considering the delay of 481 days in filing the special leave petition has held that moving of file from one department/officer to the other is not sufficient reason for 11 condoning such an abnormal delay. Para 2 of this judgment is relevant and reproduced as under :-
"2. This Court in the case of Postmaster General and Ors.vs. Living Media India Ltd.; (2012) 3 SCC 563 has deprecated such practices on the part of the government authorities/departments in the following words (SCC pp.573-74, paras 27-30) "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with Court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of 12 procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
19. In case of Pundlik Jalam Patil (dead) vs. Executive Engineer, Jalgaon Medium Project and anr. reported in (2008) 17 SCC 448 Hon'ble Apex Court has held that respondent/applicant State cannot take advantage of its negligence, after lapse of number of years. Legal rights of landloser should be protected and should not be sued beyond the prescribed period of limitation even if public purpose is involved in land acquisition, dragging the landlosers to courts of law years after the termination of legal proceedings, held, would not serve any public interest.
20. In the case of Ajit Singh and anr. vs. State of Gujarat reported in 1981 Cri.L.J.203 Hon. Supreme Court has held that sufficient cause must be referable to the period prior to the expiry of limitation. Event or circumstance arising after 13 expiry of limitation cannot constitute such sufficient cause. The part of para 6 of the judgment is relevant and reproduced as under :-
"6. ......... it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within tune. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay.
21. It is pertinent to mention here that judgment and decree of trial Court passed on 21/9/2015 while the application for getting the certified copy of the same was not filed before 10/11/2016 i.e. after almost more than 13.5 months. So the application for getting the certified copy was made long after the expiry of the limitation for the first appeal. Therefore, keeping in view the law laid down by Hon. Supreme Court in the case of Ajit Singh Thakur (Supra) the delay cannot be condoned.
22. A similar law has been enunciated by the Calcutta High Court in the case of United Commercial Bank vs. M.C. Shaw Bonded Warehouse and others, 14 A.I.R. 1985 Calcutta 445. It has been held in para 12, the relevant portion reads as under :
"12..........If, however, as the decisions mentioned above show, where an application for the certified copy of order or decree to be appealed against is not made before the expiry of the period of limitation prescribed for preferring the appeal from the order or decree then the proposed appellant is not entitled to the benefit of deducting the time requisite for obtaining the certified copy of the order or the decree in the matter of computation of the period of limitation for preferring the appeal against the order or decree. If the proposed appellant has allowed the period for preferring the appeal against the order or decree to run out he is not entitled to the benefit of S. 12 of the Limitation Act..........."
23. The Hon'ble High Court of M.P. in the case of State of M.P. vs. Laxman S/o Hiralal reported in (2013)(3)MPLJ 473 has held in para 13 as under:
"13.The recent decision of the Supreme Court in Office of the Chief Post Master General vs. Living Media India Ltd., (2012) 3 SCC 563: AIR 2012 SC 1506 is directly on the point. In this case, there was a delay of 427 days in filing the appeal before the Supreme Court against the judgement of the High Court and the certified copy of the High Court judgement was applied after four months with no explanation why it was not applied for within a reasonable time. The Supreme Court after examining other dates mentioned in the affidavit of the person-in-charge of the case to justify the delay found that there was delay at every stage with no explanation for the cause of delay. The Supreme Court also took serious note of the casual manner in which the Government departments are functioning showing virtually no respect to the law of limitation. And, while dismissing the appeal on the ground of delay, the Supreme Court has made the following observation:15
"The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of the few."
24. In the light of the aforesaid discussion, no perverse finding was given by the first appellate Court and the first appellate Court did not commit any illegality while rejecting the application for condonation of delay, thus no substantial question of law arises in this case. Learned Court below neither ignored any material fact nor considered any inadmissible evidence and, thus, the findings of the Court below is not liable to be interfered with.
25. In the result, the order dated 16/1/2017 passed by the VIth Additional District Judge, Jabalpur in Civil Appeal No. 243/16 rejecting the application for condonation of delay of 440 days in filing an appeal against Judgment and decree 16 dated 21/9/2015 passed by XIth Civil Judge, Class - I, Jabalpur in Civil Suit No. 04-A/2012 are hereby affirmed
26. The appeal fails and is hereby dismissed in limine.
(RAJENDRA KUMAR VANI) JUDGE m/-
Digitally signed by MONIKA CHOURASIA Date: 2024.01.23 11:53:25 +05'30'