Prahlad Sharma & Ors vs Shiv Kumari Devi & Ors on 27 September, 2016

[Cites 2, Cited by 1]

Patna High Court - Orders

Prahlad Sharma & Ors vs Shiv Kumari Devi & Ors on 27 September, 2016

This is the limitation petition under section 5 of the Indian Limitation Act to condone the delay of five months and seventeen days in filing this appeal. In this appeal counter affidavit has also been filed on behalf of respondent no.2. Patna High Court FA No.40 of 2012 (9) dt.27-09-2016 2/5

Heard the learned counsel for the appellants as well as the learned counsel for the respondents.

It is submitted on behalf of the appellants that the appellant no.1 is a physically challenged man of very weak intellect and physique. His sons are minor and there is none to look after and extend protection to his helpless family. He has fallen prey at the hands of some desperate land grabbers of the locality and remains always under their threat perception of his life and property. The suit is filed for declaration that the sale deed in question is null and void on the composite ground of its being without consideration as well as fraud and coercion. The plaintiff no.1 while braving all the threats deposed in the suit on 04.10.2010 lost his courage thereafter and due to constant strain of apprehension of life as well as safety of family went into depression and as a result of which he did not take steps in the suit. Even in absence of the plaintiffs the learned court below instead of dismissing the suit for default proceeded with further hearing of the suit and after closing the plaintiff's evidence recorded the statements of the defence witnesses besides admitting various documents and eventually dismissed the suit on contest with cost, although the plaintiffs has not produced his remaining witnesses and has also not cross examined any of the defence Patna High Court FA No.40 of 2012 (9) dt.27-09-2016 3/5 witnesses. The wife of plaintiff no.1 ran from pillar to post and any how succeeded in drawing the attention of the Hon'ble Chief Minister and thereafter some of the active land grabbers were arrested and put behind the bar. Thereafter the threat perception of the plaintiffs diminished. Then the plaintiff no.1 went to the concerned court in the last week of November and on enquiry learnt that the suit has already been dismissed on contest with cost on 29.06.2011 itself. Then the plaintiffs applied for the certified copy of the judgment and decree and the same was supplied on 29.02.2012. The plaintiffs thereafter arranged the requisite fund and handed over the brief for filing appeal on 04.03.2012 and then this appeal has been filed on 13.03.2012. There is no willful neglect or default on behalf of the appellants in filing the appeal within time and the default is due to circumstances beyond the control of the appellants. The appellants have a good case on merit and there is every chance of their success in this appeal and they will suffer irreparable loss and injury if the delay, if any, in filing the appeal is not condoned.

The learned counsel for the appellants has relied upon the decision of the Supreme Court in the matter of "Collector, Land Acquisition, Anantnag & Another Vs. Mst. Katiji & Others" in Civil Appeal No. 460 of 1987, reported in AIR 1987 Patna High Court FA No.40 of 2012 (9) dt.27-09-2016 4/5 Supreme Court, page- 1353. It is argued that the Courts should adopt liberal approach in deciding the limitation matter when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. The judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

On behalf of the respondents, it is submitted that no sufficient ground has been shown for condoning the delay. The appellant no.1 has made out a false and fabricated case of his illness without any supporting document of his treatment. The learned trial court has rightly dismissed the suit on merit as the evidences were recorded on behalf of the plaintiffs-appellants and the appellants left doing pairvi in the suit. The appellant's application for condonation of delay does not deserve to be allowed as the same is devoid of merit and is fit to be dismissed.

Having considered the submissions urged at the bar, going through the record and noticing that the appellants have shown sufficient grounds for not preferring the appeal in time and as such the delay in filing the appeal is hereby condoned and the Patna High Court FA No.40 of 2012 (9) dt.27-09-2016 5/5 instant interlocutory application bearing I.A. No. 2056 of 2012 stands allowed.

(Jitendra Mohan Sharma, J) Abhay/-

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Patna High Court - Orders