Madhya Pradesh High Court
Mst. Shabana Anjum vs Mohammad Suleman on 18 October, 2016
Bench: R.S. Jha, V.K. Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
First Appeal No.262/2016
Mst. Shabana Anjum & others
-Versus-
Mohd. Sulman and others
CORAM :
Hon'ble Mr. Justice R.S. Jha &
Hon'ble Mr. Justice V.K. Shukla
Mr. S.K. Dwivedi, Advocate for the appellants.
Mr. A.K. Badgaiya, Advocate for the respondent No.2.
ORDER
( 18.10.2016) Per : V.K. Shukla, J.-
Heard on I.A. No.4080/16 , which is an application under Section 5 of the Limitation Act for condonation of delay.
The present appeal has been filed by the plaintiffs- appellants under Section 96 of the Civil Procedure Code [for brevity `the CPC'] against the judgment & decree, dated 30-6- 11 passed by the learned II Additional District Judge (Fast Track Court), Maihar, District Satna in Civil Suit No.22- A/2010.
On notice the respondents-defendants have opposed the said interlocutory application by filing reply, duly supported by an affidavit. There is delay of 1579 days in filing the present appeal. The cause shown for the inordinate delay in the said application is that the appellant No.1, a lady, is not 2 educated and she can only make her signatures. In para 2 of the application it is submitted that there was another civil suit filed by the respondent/defendant No.2 and those two civil suits were continuing simultaneously which had caused confusion to the appellants. It is further stated in the application that the then counsel appearing on behalf of the appellants had advised them that the subject-matter in the other civil suit filed by the respondent No.2 will cover the subject-matter of the instant suit also. It is further stated in the application that when judgments were passed in those civil suits, the appellant No.1 had come to the High Court in appeal in that case on 16-11-15 the then counsel at Jabalpur advised her the necessity of filing the appeal against the judgment & decree passed in the instant case.
It is stated that thereafter the appellant No.1 filed an application for obtaining certified copy of the judgment & decree, dated 30-6-2011 on 17-11-15 which was prepared on 18-01-16. It is also stated that the financial condition of the appellant No.1 was very stringent and, therefore, it took time to manage the necessary expenses for the purpose of filing the appeal and the arrangement could be made only on 14-03-16. Thereafter, she had come to Jabalpur to file an appeal on 15-3-
16. It is submitted that the appeal could not be filed within time limit due to misconception and incorrect advice of the counsel, who was appearing in the trial Court.
The respondent No.2 has opposed the interlocutory application seeking condonation of delay and submitted that the judgment & decree under challenge was passed on 30-6-11 whereby the civil suit filed by the plaintiffs/appellants herein, for declaration of title and possession and also sale-deed 3 executed on 14-02-2009 by the husband of the plaintiff in favour of the defendant No.2 as null and void, was dismissed.
The said judgment & decree is subject-matter of challenge in the present appeal after a period of 1579 days, which is hopelessly time barred. It is further submitted that there was no confusion and misconception which had led the appellants not to prefer an appeal for such a long time.
It is further submitted by the respondent No.2 that after the impugned judgment & decree dated 30-6-11, after about 8 months, on 14-02-12 the defendant No.2 had filed a Civil Suit No.02-A/2012 claiming possession of the same suit land, as the civil suit filed by the plaintiffs for declaration of title and injunction was already dismissed by the impugned judgment & decree.
The present appellant had also filed a counter civil suit in the said suit. It is stated that the said civil suit was decreed on 22-01-14 and the appellants herein - defendants in the said suit were directed to handover physical possession of the disputed house and land to the plaintiffs.
The counter civil suit filed by the defendant No.2 was dismissed on the principle of res judicata. It is further stated that the first appeal filed against the judgment and decree was also dismissed against which the Second Appeal No.1390/15 was filed on 17-12-15 before the High Court. There is no interim order in the said appeal.
Learned counsel for the appellant has relied on the judgments rendered by the apex Court in Executive Officer, Antiyur Town Panchayat vs. G. Arumugam (dead) by Legal Representatives , 2015(3) SC 569 and also by this Court in the case of Salikram and others vs. Keshav and others , 2012 (1) MPLJ 93.
4It is trite law that considering the facts and circumstances of each individual case, the Court may take a lenient view for condoning delay, however, taking into consideration, the inordinate delay of 1579 days and the conduct of the appellant, the ratio laid down in the judgments cited hereinabove, by the appellants, would not apply in the present case.
Considering the submissions advanced on behalf of the appellants, we do not find that there is any sufficient cause explaining the inordinate delay of 1579 days in preferring the instant appeal. The material placed before this Court, prima facie, indicates that the appellants did not take any step to file the appeal within the prescribed period of limitation, though the appellants contested another civil suit filed by the respondent No.2 claiming possession mainly on the ground of dismissal of the suit filed by the appellants and also filed a counter suit in the said case. The same was dismissed. Though the appellants have been prosecuting and participating in the suit filed by the respondent, she did not take any step to challenge the impugned judgment/decree passed on 30-6-11, though the fact of passing the same was within her knowledge.
The manner in which the appellants had contested the civil suit filed by the respondent after dismissal of her suit by filing written submissions, counter suit, first appeal and second appeal, it cannot be accepted that the appellant was illiterate and uneducated and was, therefore, unable to understand the implications of the impugned judgment and decree. From the conduct of the appellant it can safely be inferred that the appellants have not been diligent in the present matter.
It is stated in the interlocutory application that in November, 2015 the appellants were advised by the counsel to 5 file an appeal against the impugned judgment & decree or present appeal, but the appeal was filed in the month of March, 2016 without any explanation from November, 2015 to March, 2016. Excuses taken by the appellant No.1 regarding her financial stringencies, also do not make out sufficient cause, for the reason that appellants have been contesting the civil suit filed by the respondent by filing a counter suit, first appeal and second appeal. The appellants have failed to make out reasonable and sufficient grounds for condonation of delay.
Thus, from the facts of the present case, it is abundantly clear that the appellants knowingly did not challenge the judgment/decree dated 30-6-11 dismissing their suit for about five years. After dismissal of their suit, the respondents filed suit for possession against the appellants in the year 2012 claiming rights over the suit land as the suit for declaration of title and permanent injunction of the appellants was dismissed. The suit was decreed in favour of respondents. The appellants filed first appeal which was also dismissed. Thereafter they filed second appeal in the year 2015 in the High Court but the impugned judgment/decree which is sought to be challenged in the present appeal, was not challenged for about five years. Thus, by such conduct, they recognised the existence of rights which accrued in favour of the respondents on account of impugned judgment & decree.
In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of his rights and permit the others to make claim of their rights. In the facts and circumstances of the present case, the assent of the appellants may be reasonably inferred, applying the doctrine of acquiescence.
6Section 5 of the Limitation Act provides for extension of period for filing an appeal or application when the appellant/applicant satisfies the Court that he had sufficient cause for not filing the appeal within the prescribed period. He must show that he acted diligently. While considering the provision of the Limitation Act the Supreme Court in the case of Ramlal and others vs. Rewa Coalfields Ltd. , AIR 1962 SC 361 has held that expiration of the period of limitation gives rise to a right in favour of whom the judgement/decree is passed. The said right should not be lightly disturbed.
In the present case the facts and grounds mentioned in the application, as discussed above, do not make any sufficient cause for not filing the appeal within the prescribed period of limitation. On the contrary, we find that there is lack of diligence and negligence shown by the appellants in filing the instant appeal.
For the reasons stated hereinabove, we are not inclined to exercise our discretion in favour of the appellants. Hence, I.A. No.4086/16 is dismissed. Consequently, as a logical corollary, the first appeal also fails and stands dismissed.
(R.S. Jha) (V.K. Shukla)
Judge Judge
ac.