Rajasthan High Court - Jodhpur
Gopal vs Rameshchandra on 10 January, 2022
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 38/2021
Gopal S/o Late Lilaji, Aged About 41 Years, By Caste Ghanchi,
R/o Nitoda, Tehsil Pindwara, District Sirohi (Rajasthan).
----Appellant
Versus
1. Rameshchandra S/o Heeraramji, By Caste Ghanchi, R/o
Chhoti Nitoda, Tehsil Pindwara, District Sirohi
(Rajasthan).
2. Lrs. Late Shri Kanti Lal, S/o Lila Ji Ghanchi, R/o Nitoda,
Tehshil Pindwara, District Sirohi.
3. Smt. Santosh W/o Late Shri Kanti Lal, Nitoda, Tehsil
Pindwara, District Sirohi.
4. Jaswant Kumar S/o Late Shri Kanti Lal, Aged About 8
Years, Minor, Through His Natural Guardian Smt. Santosh
W/o Late Shri Kanti Lal, R/o Nitoda, Tehsil Pindwara,
District Sirohi.
5. Durgi D/o Late Shri Kanti Lal, Aged About 5 Years, Minor,
Through His Natural Guardian Smt. Santosh W/o Late
Shri Kanti Lal, R/o Nitoda, Tehsil Pindwara, District Sirohi.
6. Gudiya D/o Late Shri Kanti Lal, Aged About 8 Years,
Minor, Through His Natural Guardian Smt. Santosh W/o
Late Shri Kanti Lal, R/o Nitoda, Tehsil Pindwara, District
Sirohi.
----Respondents
For Appellant(s) : Mr. B.S. Deora
For Respondent(s) : Mr. V.D. Vaishnav
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 10/01/2022 The present second appeal under Section 100 CPC has been filed against the judgment dated 20.01.2021 passed by learned (Downloaded on 12/01/2022 at 08:50:58 PM) (2 of 5) [CSA-38/2021] Additional District Judge, Pindwara, Distt. Sirohi who while dismissing the application filed under Section 5 of Limitation Act and consequently, the appeal filed by the appellant, upheld the judgment and decree dated 23.01.2012 passed by Civil Judge (Jr. Division), Pindwara, Distt. Sirohi in Civil Original Suit No. 35/2007.
Brief facts of the case are that the plaintiff respondent filed a suit against the appellant defendant seeking possession and permanent injunction with regard to property situated in village Nitoda at Mandwara Deo, Tehsil Pindwara, district Sirohi.
On the basis of pleadings of the parties, as many as seven issues were framed by the learned trial court. The plaintiff respondent examined oral as well as documentary evidence, however, the appellant/defendants' evidence could not be examined and subsequently, the learned trial court closed the evidence of the defendants and decreed the suit in favour of respondent-plaintiff.
When the appellant came to know about the decree passed in favour of the plaintiff, the appellant filed an appeal before the court of Additional District Judge, Abu Road alongwith application under Section 5 of Limitation Act. Learned appellate court while observing that there exists no sufficient and reasonable ground explaining the delay in filing the appeal, dismissed the application under Section 5 of the Limitation and so also the appeal.
Learned counsel for the appellant submits that the appellant defendant had categorically stated in the application that brother of appellant/defendant Kanti Lal suffered from Silicosis and after prolonged disease, he died in the year 2017. The appellant Gopal was also at Gujarat for earning his livelihood and during this period, the suit was decreed in favour of the plaintiff. It is argued (Downloaded on 12/01/2022 at 08:50:58 PM) (3 of 5) [CSA-38/2021] that appellant is a poor person and since he did not get any information from the counsel with regard to the decree passed by the trial court, the defendants could not file an appeal within the prescribed period. It is further argued that the appellant had filed the appeal alongwith application under Section 5 of Limitation Act on 27.08.2012 and after lapse of nine years, instead of deciding the appeal on merits, the learned appellate court has simply dismissed the application under Section 5 of Limitation Act despite the fact that sufficient cause has been given explaining the delay in filing the appeal. Therefore, it is prayed that impugned judgments may kindly be quashed and set aside and the matter may be remanded back to the appellate court with direction to decide the appeal on merits.
Per contra, Mr. V.D. Vaishnav, learned counsel appearing for the respondent plaintiff submitted that the appellant woke up from long slumber to file the appeal against the judgment and decree passed by the trial court but has failed to discharge the burden of explaining each day delay in a justifiable manner. Therefore, the application for condonation has rightly been rejected by the appellate court.
The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he (Downloaded on 12/01/2022 at 08:50:58 PM) (4 of 5) [CSA-38/2021] had sufficient cause for not preferring the appeal or making the application within such period.
It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay.
The appellant has stated that during the pendency of the suit, the appellant had also gone out of Rajasthan for earning his livelihood and his brother Kanti lal who was a labourer in stone cutting mines, also suffered from Silicosis and after prolonged disease died in the year 2017, therefore, he could not contact his counsel nor his counsel informed him about the judgment and decree dated 23.01.2012. In the interest of justice, the impugned judgment dated 20.01.2021 passed by learned Additional District Judge, Pindwara, Distt. Sirohi is quashed and set aside and the matter is remanded back to the appellate court for deciding the appeal afresh on merits subject to deposition of cost of Rs. 3,000/- before the appellate court within a period of two months from today. Appellate court is directed to decide the appeal on its (Downloaded on 12/01/2022 at 08:50:58 PM) (5 of 5) [CSA-38/2021] merits, after granting an opportunity of hearing to the appellant, preferably within a period of one year.
The appeal is allowed accordingly.
(MANOJ KUMAR GARG),J 101-BJSH/-
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