Rajasthan High Court - Jaipur
Geegraj vs Nagarmal And Ors on 19 May, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 192/2006
Geegraj S/o Ramdev, resident of Chailpuri, Tehsil Khetri, District
Jhunjhunu
----Appellant/Plaintiff
Versus
1. Nagarmal S/o Chunnilal, resident of Khetri, Tehsil Khetri,
District Jhunjhunu.
2. Jamman S/o Jhuntharam, resident of Chailpuri, Tehsil, Khetri,
District Jhunjhunu.
Respondents
3. Nagar Palika Khetri through Executive Officer Khetri (Rajasthan)
4. President, Nagar Palika Khetri, District Jhunjhunu
5. Director, Department of Local Bodies, Jaipur
----Respondents/Defendants For Appellant(s) : Mr. Manish Sharma, Adv.
For Respondent(s) : Mr. Harshad Kapoor, Adv. for Mr. Rajesh Kapoor, Adv.
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment Reportable 19/05/2022 This misc. appeal has been filed under Order 41 Rule read with Rule 23-A of the Code of Civil Procedure (for short 'CPC') against the impugned judgment dated 27.10.2005 passed by the Additional District Judge, Khetri in Civil Regular Appeal No.13/2004 by which the judgment and decree dated 08.02.1994 passed by Civil Judge, Khetri, District, Jhunjhunu was quashed and-set-aside and the matter was remanded to the Civil Judge to (Downloaded on 24/12/2022 at 10:10:56 PM) (2 of 12) [CMA-192/2006] decide the suit afresh after affording the opportunity of hearing to both sides.
Feeling aggrieved by the impugned judgment appellant- plaintiff has submitted this appeal inter alia on the ground that the original suit for permanent injunction was instituted in the year 1984 and the same was decreed by the learned Civil Judge vide judgment dated 08.02.1994 and the original defendants- respondents were directed not to dispossess the plaintiffs- appellants from the land in question without following the process of law and in the alternative, a direction was issued to regularize the possession of appellants-plaintiffs, if permissible as per law.
Counsel for the appellants-plaintiffs submitted that the original defendants were satisfied with the judgment dated 08.02.1994 and they have not assailed the same before the Appellate Court. Hence, the judgment dated 08.02.1994 has attained finality to their extent.
Counsel further submitted that the present respondents namely Nagarmal and Jamman, who were not party to the suit submitted a time-barred appeal after 10 years and 8 months after judgment dated 08.02.1994 under Section 96 of CPC before the Court of Additional District Judge, Khetri alongwith an application under Section 5 of the Limitation Act alongwith an application seeking leave to file appeal.
Learned counsel further submitted that without even issuing notice or giving opportunity of hearing, the application seeking leave to file the appeal was allowed and the delay of 10 years and 8 months was condoned and thereafter the appeal of the respondents was allowed in contravention of the provisions of law. (Downloaded on 24/12/2022 at 10:10:56 PM)
(3 of 12) [CMA-192/2006] Counsel also submitted that the Appellate Court has passed the impugned-judgment in-violation of Order 41 Rule 33 CPC without formulating the points of determination. In the said judgment, the Appellate Court has formulated three points which are prima facie case, balance of convenience and irreparable loss, as if the Appellate Court was deciding the temporary injunction application under Order 39 Rules 1 & 2 of CPC.
Counsel submitted that the respondent Nagarmal and one Prahlad Singh, son of Jhuntharam, who is brother of respondent No.2 Jamman, filed a separate suit with regard to the same land in question by playing the game of hide and seek before the Civil Court and the same was decreed on 26.04.2006.
Counsel further submitted that against the said judgment and decree dated 26.04.2006, the appellants-plaintiffs submitted a Civil Regular First Appeal which was allowed on 25.11.2017 and the judgment and decree dated 26.04.2006 was quashed and set aside.
He further submitted that all these persons were in collusion and their sole objective was to defeat the decree passed in favour of the plaintiffs.
Lastly, the counsel for the appellants-defendants submitted that during pendency of Civil Regular First Appeal submitted by the respondent No.1 and brother of respondent No.2, the Municipal Board, Khetri, District, Jhunjhunu has allotted the Patta No.557 on 05.03.2013 to the plaintiffs and the same has not been challenged by the respondents before any competent court of law.
Learned counsel further submitted that under these
circumstances, the impugned judgment and decree dated
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27.10.2005 is not sustainable in the eye of law and the same is liable to be quashed and set aside by this Court.
Per contra, learned counsel for the respondent Nos. 1 & 2 submitted that the respondent Nos. 1 and 2 were not party to the suit and they were not aware about the judgment and decree dated 08.02.1994 passed by the learned Civil Judge. Immediately after getting the knowledge of the aforesaid judgment, the Regular First Appeal was submitted before the Court of Additional District Judge, Khetri along with an application seeking leave under Section 96 of CPC and an application under Section 5 of the Limitation Act.
He further submitted that after due application of mind, the learned Appellate Court allowed the application under Section 5 of the Limitation Act and rightly condoned the delay and granted leave to the respondents to submit the appeal.
Learned counsel has not disputed that the respondent No.1 and brother of the respondent No.2- Prahlad Singh submitted a suit with regard to the land in question before the Civil Court and the same was decreed on 26.04.2006, the appellants-plaintiffs submitted a Regular First Appeal and the same was allowed on 25.11.2017.
He further submitted that against the judgment dated 25.11.2017, the respondent No.1 and the brother of the respondent No.2 submitted SB Civil Second Appeal No.118/2018 before this Court and the same is pending for adjudication.
Lastly, he submitted that no illegality has been committed by the Appellate Court in remanding the matter to the Civil Court while deciding the suit afresh.
Heard counsel for the parties and perused the record. (Downloaded on 24/12/2022 at 10:10:56 PM)
(5 of 12) [CMA-192/2006] It is not in dispute that the original suit was filed by the plaintiffs-appellants against the officials of the Municipal Board, Khetri and Director, Local Self Board, Jaipur with regard to the land in question. After hearing the original defendants, the suit was decreed by the learned Civil Judge vide judgment and decree dated 08.02.1994 and a direction was issued to the defendants to not to dispossess the plaintiffs from the land in question without following the due process of law and in the alternative, a direction was also issued to regularise the possession of the plaintiffs, if permissible as per law.
It is also not in dispute that the defendants did not assail the said judgment dated 08.02.1994 due to which it attained finality to that extent.
Perusal of the record indicates that a time barred appeal suffering from a delay of 10 years and 8 months, was submitted by the respondent No.1 and 2 before the Appellate court along with an application under Section 5 of the Limitation Act and in addition, an application under Section 96 of CPC was submitted by the respondent Nos.1 and 2 seeking leave to file the appeal.
Perusal of the order sheet dated 18.10.2004 clearly indicates that without even issuing notice, these applications filed under Section 5 of the Limitation Act and under Section 96 of CPC were allowed without giving any opportunity of hearing to the plaintiffs. The appellate Court has condoned a huge delay of 10 years and 8 months without assigning a single reason in the order dated 18.10.2004.
The Hon'ble Apex Court in the case of Motilal and Chhotelal Vs. Rewa Coalfields Ltd., reported in 1962 (2) SCR 762 has observed and held as under:-
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(6 of 12) [CMA-192/2006] "In construings. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation pres-cribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattapan (1) "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."
Similarly, in the case of Pundik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project reported in (2008) 17 SCC 448, the Hon'ble Supreme Court has held as under:-
"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. (Downloaded on 24/12/2022 at 10:10:56 PM)
(7 of 12) [CMA-192/2006] Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
Law of limitation being a substantive law, the appeals are to be filed within a time limit. Filing an appeal within a period of limitation is the rule and condonation of delay is an exception. Thus, while condoning the delay, the Courts must be cautious and only on genuine reasons, the Courts are empowered to condone the delay. The power of discretion to condone the delay is to be exercised judiciously and by recording reasons. The reasons furnished for condonation of delay must be candid and convincing. Therefore, the condonation of delay cannot be claimed as a matter of right and only on genuine reasons, the delay is routine manner, the Courts are not only diluting the law of limitation but unnecessarily encouraging this kind of lapses. Therefore, reasons which are all acceptable alone must be a ground for condonation of delay, and filmsly, false and casual reasons cannot be taken for the purpose of condoning the huge delay.
The Supreme Court in the decision in State of Rajasthan v. Rajendra Prasad Jain Criminal Appeal No. 360/2008 (Arising out of SLP (Crl.) No. 904/2007) observed that, "reason is the heartbeat of every conclusion, and without the same it becomes lifeless." Providing of reasons in orders is of essence in judicial proceedings. Every litigant who approaches the Court with a prayer is entitled to know the reasons for acceptance or rejection of such request. Either of the parties to the lis has a right of appeal and, therefore, it is essential for them to know the considered opinion of the Court to make the remedy of appeal meaningful. It is the reasoning which ultimately culminates into final decision which may be (Downloaded on 24/12/2022 at 10:10:56 PM) (8 of 12) [CMA-192/2006] subject to examination of the appellate or other higher Courts. It is not only desirable but, in view of the consistent position of law, mandatory for the Court to pass orders while recording reasons in support thereof, however, brief they may be. Brevity in reasoning cannot be understood in legal parlance as absence of reasons. While no reasoning in support of judicial orders is impermissible, the brief reasoning would suffice to meet the ends of justice at least at the interlocutory stages and would render the remedy of appeal purposeful and meaningful. It is a settled canon of legal jurisprudence that the Courts are vested with discretionary powers but such powers are to be exercised judiciously, equitably and in consonance with the settled principles of law. Whether or not, such judicial discretion has been exercised in accordance with the accepted norms, can only be reflected by the reasons recorded in the order impugned before the higher Court. Often it is said that absence of reasoning may ipso facto indicate whimsical exercise of judicial discretion.
In the case of Basawaraj & Anr. Vs. Land Acquisition Act (Civil Appeal No.6974-75/2013), it is observed and held by Hon'ble Apex Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause"
cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, (Downloaded on 24/12/2022 at 10:10:56 PM) (9 of 12) [CMA-192/2006] lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
In the case of Pundlik Jalam Patil(supra), it is observed by this Court that the Court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant "do not slumber over their rights".
Hon'ble Supreme Court in the case of High Court of Judicature of Patna Vs. Madan Mohan Prasad & Ors., reported in 2011(9) SCC 65 has held that:-
"......When a petition is filed by and the period of limitation prescribed, and when it is accompanied with an application for condonation of delay, The Court should not condone the delay without notice to the respondent....."
In the considered opinion of this Court that it was erroneous on the part of the Appellate Court to admit the application which was beyond time by condoning the delay of 10 years and 8 months without giving notice to the plaintiff/appellant and without hearing him. If an appeal has been submitted beyond time, the plaintiff/decree holder has acquired a valuable right and it is an elementary proposition of law that a court cannot deprive a party of a valuable right without hearing him. Therefore, in the opinion of this Court, the proper procedure for the Appellate Court to not admit the condonation application but to keep it pending and issue (Downloaded on 24/12/2022 at 10:10:56 PM) (10 of 12) [CMA-192/2006] a notice upon the other side to show cause why the delay should not be condoned.
In this case, the delay of 10 years and 8 months has been condoned without notice to the plaintiff. The plaintiff could not have his say in the matter of condonation of delay. It is one of the principles of law that under Section 5 of the Limitation Act that in the matter of condonation of delay the power to condone the delay is always there in the Court but that power cannot be exercised when the Appellate Court comes to the conclusion and it records a finding to the effect that under the fact and circumstances mentioned in the affidavit and application, the applicant has proved and established satisfactory cause for delay an explained the delay. No such finding appears to have been recorded in the order of condoning of delay.
In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights".
Bare perusal of the record clearly indicates that the Appellate Court has acted in gross violation of principles of natural justice, in allowing the applications filed by the respondent Nos. 1 and 2 under Section 5 of the Limitation Act and under Section 96 of CPC without affording any opportunity of hearing to the appellants.
Order 41, Rule 31 CPC deals with the procedure for deciding the appeal it says that the judgment of the Appellate Court shall state:-
(a) the points for determination,
(b) the decision thereon;
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(c) the reasons for the decision; and
(d) where the decree appeal from which reversed or varied, the relief to which the appellant is entitled;
Here in the instant case, prima facie, it is clear that instead of deciding the appeal as per law, the mandatory provision contained in Order 41 Rule 31 CPC has been overlooked by the Appellate Court and the Appellate Court decided the appeal as if it was deciding an application for temporary injunction under Order 39 Rule 1 & 2 CPC.
For the reasons aforesaid, the matter requires re- consideration.
In view of the reasons recorded herein above, the impugned judgment dated 27.10.2005 passed by the Additional District Judge, Khetri in Civil Regular Appeal No.13/2004 is quashed and set aside. The matter is remanded to the Appellate Court to decide the appeal afresh after giving notices of both the applications filed under Section 5 of the Limitation Act and under Section 96 of CPC to the plaintiffs and after affording the opportunity of hearing to both the sides. The Appellate Court is directed to consider all the relevant documents submitted after giving opportunity of hearing to both the sides.
Parties are directed to appear before the Appellate Court on 01.07.2022.
Since the matter pertains to year 1984, the Appellate Court is directed to decide the matter as early as possible within 90 days from the date of receipt of certified copy of this Order.
The appellate court is directed to take note of the subsequent developments which have occurred during pendency of this appeal.
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(12 of 12) [CMA-192/2006] With the above observations, the appeal stands disposed of. Stay application and all pending application if any also stand disposed of.
(ANOOP KUMAR DHAND),J PRAVESH/2 (Downloaded on 24/12/2022 at 10:10:56 PM) Powered by TCPDF (www.tcpdf.org)