Madhya Pradesh High Court
Rajendra Kumar Adhwaryu vs Parmanand Judgement Given By: Hon'Ble ... on 14 March, 2014
S.A. No. 76 of 2006
14.03.2014
Shri Abhishek Singh, learned counsel for the appellants.
Shri R.P. Agrawal, learned Sr. Adv assisted by Shri Vaibhav Jain,
learned counsel for respondents.
In view of listing the matter for hearing IA No. 14107/11, respondents' application for early hearing of this appeal does not require any further consideration, hence the same is disposed of.
Heard on IA No. 312/06, appellants' application under Section 5 of the Limitation Act for condoning the delay in filing the present appeal as the same has been filed barred by 5 years and 130 days, as reported by the office.
In the aforesaid application, interlia it is stated that the impugned judgment was passed by 2nd Additional District Judge, Tikamgarh in Civil Regular Appeal No. 09/98, vide dated 11.5.2000. Subsequent to such judgment, the period from 12.5.2000 to 25.2.2000 was spent by the appellant in obtaining the certified copy of the same. Thereafter on dated 22.8.2000 within the prescribed period, on behalf of the appellant against such judgment, S.A. No. 1011/2000 was filed. In pendency of the same under bonafide advise, an application for conversion of such appeal into civil revision was filed on 5.9.2000. After allowing such second appeal was converted as C.R. No. 1574/01 and was admitted on 7.7.2003. Subsequent to that on coming to know that revision is not tenable against the impugned judgment, then the appellant had withdrawn such civil revision with liberty to file writ petition vide order dated 25.8.2004 and subsequent to it, the present second appeal was filed on 21.12.2005, i.e. after near about 1 years and 170 days.
It is also stated that after withdrawal of the aforesaid civil revision due to lack of communication between the counsel and the appellants, they could not file the present appeal within a reasonable period or in any case within the prescribed limitation and stating such circumstances to be bonafide and sufficient for condoning the alleged delay in filing this appeal, this IA is preferred. The IA is further supported by an affidavit of Rajendra Adhvarya, appellant no.1. On argument by referring these facts, the appellants' counsel prayed to condone the aforesaid delay by allowing this IA.
On the other hand, by filing reply of this IA on behalf of the respondents, all the averments are denied. In addition to it, it is stated that whatsoever cause is stated in the IA, the same could not be treated to be sufficient cause as per requirement of Section 5 of the Limitation Act for condoning the alleged aforesaid long delay. Learned Senior Counsel also argued that it is apparent fact from the impugned application that the appellants have failed to explain the circumstances regarding delay in filing the appeal for the period between 25.8.2004 to 21.12.2005 and unless such delay is properly explained, the application of the appellants in the present nature can not be allowed to condone the alleged delay.
Having heard, keeping in view the arguments advanced, I have carefully gone through the application alongwith the impugned judgment.
True it is that after passing the impugned judgment by the subordinate appellate court initially S.A. No. 1011/2000 was filed within limitation but subsequently the same was converted into civil revision, which was also withdrawn with liberty to file writ petition, vide dated 25.8.04, as stated above. Thereafter, the impugned appeal was filed on 21.12.05 near about after 1 year and 27 days from the date of withdrawal of aforesaid civil revision. It is apparent that in the impugned application to condone the alleged delay the appellants have shown the cause that due to lack of communication between the counsel of aforesaid revision and the appellants, they could not file the appeal within the limitation but in support of such contention the affidavit of the concerning counsel has also not been filed. Besides this, the appellants have also not stated that why they have not contacted themselves to the counsel for such a longer period to enquire the status of aforesaid earlier second appeal and the civil revision. In such premises, mere on the averments of the application that due to lack of communication from the counsel for want of knowledge of withdrawal of civil revision with some liberty, they could not file the appeal within the prescribed period could not be believed. The party is duty bound to contact the Advocate periodically to know the progress and the status of the case. In that respect if the party is negligent then on account of such negligence, the right of other party which has accrued on expiry of limitation for filing the proceeding could not be defeated and in such premises, whatsoever cause is stated by the appellants in the application, the same could not be treated to be sufficient cause as per requirement of Section 5 of the Limitation Act for condoning the alleged delay and in such premises, this application deserves to be dismissed.
It is settled proposition that on expiration of period of limitation prescribed to file the appeal gives rise the valuable right in favour of other party and such accrued legal right of the other party by lapse of time could not be lightly disturbed unless the sufficient cause for condoning such delay is proved by reliable and admissible evidence and circumstances.
Such principle is laid down by the Apex Court in the matter of Ramlal and others Vs. Rewa Coalfields Ltd. reported in AIR 1962 SC, 361 in which it was held as under:-
(b) Limitation Act (1908) S. 5 - Principles.
In construing S. 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 and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration, which can not 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.
In view of aforesaid, I have not found any sufficient cause for condoning the alleged delay in filing this appeal. Consequently this IA is hereby dismissed. Pursuant to it, the appeal is hereby also dismissed as barred by time.
No order as to cost.
(U. C. Maheshwari) Judge bks