Rajasthan High Court - Jaipur
Chhagan Lal vs Bhawani Sahai And Others on 10 April, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. CIVIL MISC. APPEAL NO.3297/2012 (Chhagan Lal Vs. Bhawani Sahai & Ors.) Date of Order : 10.04.2013 HON'BLE MR. JUSTICE ALOK SHARMA Mr. G.S. Shekhawat, for the appellant. Mr. Vimal Kumar Jain, for the respondents. BY THE COURT
1) This civil misc. appeal has been filed against the order dated 24.07.2012, passed by the Additional District and Sessions Judge, Sambhar Lake, District Jaipur dismissing an application under Section 5 of the Limitation Act and consequently also an accompanying application under Order 41 Rule 19 CPC read with Section 151 CPC for restoring the appeal dismissed in default vide order dated 19.02.2009 passed by the learned ADJ, Sambhar Lake (against the judgment and decree dated 15.03.2005, passed by the Additional District & Sessions Judge, Sambhar Lake, District Jaipur in a suit for partition).
2) The background facts of the case are that the plaintiff-respondent No.1, Bhawani Sahai (hereinafter 'the plaintiff'), filed a suit for partition before the learned Civil Judge (Sr. Div.) & Additional Chief Judicial Magistrate, Sambhar Lake, District Jaipur stating that he was entitled to a portion of house situate in ward No.1 in the town of Phulera, being the ancestral property constructed by his father. The dimension of the house in issue was detailed in the plaint as was the family tree. It was averred that during the lifetime of his late father Roopa Ram on 21.05.1986, a family statement was entered into. Part of the house as detailed in the plaint came to be his share. The plaintiff's father died on 02.11.1993 and thereafter he continued to live in the said house. It was stated that when the plaintiff however sought the formal possession of the portion falling to his share as per the family settlement, the appellant-defendant, Chhagan Lal (hereinafter 'the defendant') first delayed the matter and finally refused to abide by the family settlement. It was stated that in spite of various attempts to find an solution amicably and take possession of his portion as per the family settlement dated 21.05.1986, all efforts towards that end had been of no avail and in fact the defendant, Chhagan Lal started to raise construction over the house and in contravention of the family settlement. In the facts averred, a formal partition by metes and bounds as per the family settlement dated 21.05.1986 was sought as also the possession thereof. Expectedly, on service of the plaint filed by the plaintiff, written statement of denial was filed by the defendant. Respondent Nos.2 & 3, Magan Lal and Ghasi Ram, the other defendants in the suit, respectively, however in their written statements supported the case of the plaintiff and admitted to the family settlement entered between the brothers during the lifetime of their father on 21.05.1986 and the obligation to adhere thereto as prayed by the plaintiff. The learned court below vide its judgment dated 15.03.2005 decreed the suit in favour of the plaintiff and declared his ownership of the portion of the disputed house detailed in the suit and marked as A, F & AG. It was directed by the court below that the plaintiff be put in possession of the said portion of the house in dispute. Aggrieved by the judgment and decree dated 15.03.2005, the defendant-appellant filed an appeal before the learned Additional District and Sessions Judge, Sambhar Lake, District Jaipur. The said appeal remained pending for about four years. Having been adjourned from time to time, the matter was fixed for final arguments on 19.02.2009. On the said date, the defendant Chhagan Lal did not appear before the appellate court below consequent to which the appeal was dismissed in default under the provisions of Order 41 Rule 17 CPC.
3) An application thereafter came to be filed by the defendant Chhagan Lal before the Additional District and Sessions Judge, Sambhar Lake under Order 41 Rule 19 CPC read with Section 151 CPC praying that the appeal dismissed in default be restored to its original number. The said appeal was accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay of over three years as the said application had not been filed within 30 days of the dismissal of the appeal in default as warranted in law.
4) Vide impugned order dated 24.07.2012, the learned appellate court has taken into consideration the facts of the case and dismissed the application under Section 5 of the Limitation Act for condonation of delay and consequently also the appeal under Order 41 Rule 19 CPC read with Section 151 CPC. It has been held by the appellate court below that in the application for condonation of delay, there was no sufficient cause set out to explain as to why the defendant had failed to appear before the appellate court in his appeal on 19.02.2009 and further even why he had not been vigilant with regard to his own appeal. The court found that there was no effort to explain why steps had not been taken with expedition for the restoration of the appeal by resort to Order 41 Rule 19 CPC. The appellate court did not find any substance in the grounds agitated by the defendant as reasons to explain sufficient cause for the delay in moving an application under Order 41 Rule 19 CPC read with Section 151 CPC as no certificate of illness on the date of hearing i.e. 19.02.2009, when the appeal was to be finally argued and heard, was filed. The court below also held that it was not credible that the defendant did not know about the dismissal of his own appeal in default on 19.02.2009 against the judgment and decree dated 15.03.2005 passed by the Civil Judge (Sr. Div.) & Additional Chief Judicial Magistrate, Sambhar Lake, District Jaipur. It was also held that the appeal having been dismissed on 19.02.2009 in default and the application for restoration thereof having been filed on 03.04.2012 after a delay of over three years, there was no reason to exercise the discretion of the court to condone the delay in filing the application for restoration of the appeal. Hence the application for condonation of delay under Section 5 of the Limitation Act was dismissed with the consequence of the application under Order 41 Rule 19 CPC also being dismissed.
5) Counsel for the defendant-appellant submitted in the present civil misc. appeal that the defendant is an innocent litigant and for some inexplicable reasons was unable to keep track of his own appeal against the judgment and decree dated 15.03.2005 aforesaid. It has been submitted that the defendant had taken ill consequent to which the matter could not be pursued either by him or his counsel, who has been instructed to argue the appeal. It was therefore prayed that in the circumstances, as no one should be contemned unheard, the order dated 24.07.2012 passed by the appellate court should be set aside and the application under Section 5 of the Limitation Act seeking condonation of delay in moving an application under Order 41 Rule 19 CPC read with Section 151 CPC should be allowed with a direction issue to the Additional District and Sessions Judge, Sambhar Lake to hear and decide the application for restoration of the appeal dismissed in default on merit. Counsel for the defendant has relied upon a judgment of the Hon'ble Supreme Court in the case of Rafiq & Anr. Vs. Munshilal & Anr. [AIR 1981 SC 1400]. A further reliance has been placed on a judgment of this Court in the case of Laxmi Lal Vs. Smt. Gulab Bai [2006 (1) DNJ (Raj.) 551]. Reliance has also been placed on a judgment of this Court in the case of Om Prakash Vijay Vs. State of Rajasthan through The Secretary, Department of Panchayati Raj Department, Secretariat, Jaipur & Ors., [2011 WLC (Raj.) UC 684].
6) Counsel for the respondent-plaintiff (hereinafter 'the plaintiff') has, on the other hand, relied upon the judgments of the Hon'ble Supreme Court in the cases of P.K. Ramachandran Vs. State of Kerala & Anr. [(1997) 7 SCC 556], and Parimal Vs. Veena [AIR 2011 SC 1150]. Counsel has also placed reliance on a judgment of this Court in the case of State of Rajasthan Vs. Smt. Virma Devi & Ors. [RLR 2002 (2) 499] and a judgment of the Hon'ble Himachal Pradesh in the case of K.D. Sharma & Ors. Vs. H.P. State Cooperative Bank Ltd. & Anr. [AIR 2011 HP 60]. Counsel for the plaintiff submitted that in the present appeal the issue is fundamentally with regard to the right of the defendant to condonation of delay of over three years in filing an application for restoration of the appeal dismissed in default. It has been submitted that the Limitation Act is a statute repose with the public policy of seeing expeditious closure of litigation. It was submitted that for condonation of delay in availing remedies otherwise provided in law, the applicant has to show sufficient cause which is dependent upon an assessment of overall facts and circumstances of each case and not to be imagined casually and lightly on the mere askance of a litigant in default. Counsel submitted that the delay of over three years in filing an application under Order 41 Rule 19 CPC read with Section 151 CPC is an unconscionable delay without any just cause and no evidence of the reasons which entailed the delay in availing the remedy of restoration of an appeal dismissed in default was proffered by the defendant before the lower appellate court. It was submitted that the whole attempt of the defendant was to delay the proceedings and deprive the plaintiff of the fruits of a decree validly passed by the trial court as early as 2005. It is submitted that the plaintiff continues to be deprived of the right to enjoy the user of his property for over last fifteen years in spite of a validly drawn judgment and decree dated 15.03.2005.
7) Heard and considered.
8) None of the judgments cited by the counsel for the defendant relate to the issue of condonation of delay in availing remedies otherwise available in law. The judgments relied upon only refer the power of the court under Order 41 Rule 19 CPC read with Section 151 CPC to restore an appeal dismissed in default which power is not in question in the present case. Counsel for the defendant has failed to address this Court on the sufficiency of cause in moving an application under Order 41 Rule 19 CPC read with Section 151 CPC for restoration of the appeal dismissed in default after a delay of about three years or the perversity in the order of the lower appellate court in dismissing the said application. To my mind, from the facts on record, there is not even an iota of reason, what of "sufficient cause", which could be found to supply the ground for condonation of delay in moving an application under Order 41 Rule 19 CPC read with Section 151 CPC for restoration of the appeal dismissed in default. It is quite apparent that resort to judicial process before the lower appellate court was taken casually and mechanically without any resonable justification and after an unexplained delay of three years constituted only a unwarranted drain on court time. In my considered view, the judgments relied upon by the counsel for the plaintiff are more apposite to the facts of the case before this Court. In the case of P.K. Ramachandran (Supra), the Hon'ble Supreme Court has held that even where the law on limitation harshly affect a particular party, it has to be applied with all rigour and the courts have no power to extend the limitation on equitable grounds. In the aforesaid case, the Hon'ble Supreme found that the High Court having condoned the delay in availing a remedy provided in law without reference to the facts of the case and without finding sufficient cause for condonation of delay had erred and therefore its order condoning the delay was liable to be set aside. In the case of Parimal (Supra) construing the expression of the words "sufficient cause" albeit in the context of provision of Order 9 Rule 13 CPC, the Hon'ble Supreme Court has held that the expression "sufficient cause" means that party seeking to invoke the discretion of the court had not acted in a negligent manner or the party could not be alleged to have been not acting diligently or remaining inactive. It is thus apparent that the words "sufficient cause" are not empty verbiage allowing a casual resort to judicial process to the detriment of the opposite party. The words "sufficient cause" contextually entail the burden on an applicant to establish that reasons beyond his control obstructed availing of judicial remedies available in law. In the facts of the present case, I find that the defendant had been grossly first negligent in not pursuing his appeal and then in only seeking its restoration over three years subsequent to its dismissal in default. If such applications are entertained and allowed, the entire judicial process is likely to be collapse and finality of judicial determination compromised. In the case of Smt. Virma Devi (Supra), this Court had refused to condone a mere delay of 131 days in moving an application for restoration of the appeal dismissed in default on the good ground that the restoration of the appeal would adversely affect the crystallised rights of the opposite party.
9) The upshot of the aforesaid discussions is that the present misc. appeal challenging the order dated 24.07.2012 is completely frivolous and part takes the character of a vexatious resort to the judicial process. The appeal against the judgment and decree 15.03.2005 was dismissed in default on 19.02.2009. For three years no effort was made for seeking its restoration under Order 41 Rule 19 CPC read with Section 151 CPC. The reasons in the accompanying application under Section 5 of the Limitation Act for condonation of delay were casual and without any material particulars or any evidence in support thereof.
10) Consequently, I find no force in the civil misc. appeal and the same is dismissed.
11) Stay application also dismissed in view of the civil misc. appeal being dismissed.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A.