Punjab-Haryana High Court
Khiloni And Ors. vs The Municipal Committee on 9 November, 1994
Equivalent citations: (1995)109PLR643
JUDGMENT N.K. Kapoor, J.
1. This is plaintiffs regular second appeal against judgment and decree of the Additional District Judge, Gurgaon, whereby appeal filed against judgment and decree of the trial Court was dismissed on the ground of limitation.
2. Briefly put, plaintiffs filed suit for permanent injunction that they are owners in possession of a plot and land marked ABC in the site plan attached with the plaint and had been using the same as owners since immemorial from the time of their forefathers. They further averred that with the intent of raising construction on the same and with a view to seek permission they applied to the Municipal Committee for sanctioning of the plot. Before the plaintiffs could raise construction, defendant Committee threatened the plaintiffs that they will be dispossessed which impelled the plaintiffs to file the present suit.
3. On the basis of pleadings of the parties a number of issues were framed by the trial Court which need not be given in details as the matter is being disposed of with regard to the point of limitation alone. Trial Court dismissed the suit of the plaintiffs vide judgment dated November 23, 1978. Appeal was filed in the Court of Senior Sub Judge, Gurgaon on 16.1.1979. This appeal was withdrawn and transferred to the Court of Additional District Judge, Gurgaon. On 19.12.1979 the Additional District Judge, Gurgaon came to the conclusion that appeal should have been filed in the Court of District Judge and not in the Court of Senior Sub Judge and so the memorandum of appeal was ordered to be returned to the appellants for presentation in the Court of competent jurisdiction on 24.12.1979. The appeal was re-filed in the Court of District Judge on the same day i.e. 24.12.1979. It was accompanied by an application under Sections 5 and 14 of the Limitation Act for seeking condonation of delay in filing the appeal and excluding the time bonafidely spent in a Court which from the defect of jurisdiction could not entertain the same.
4. Learned Additional District Judge, however, did not find sufficient ground for condoning the delay and hence dismissed the appeal on April 22, 1980.
5. I have heard the learned counsel for the parties. Broad facts which have been briefly noticed above are not in dispute. Admittedly, the appeal was filed on 16.1.1979, though before a wrong Court which was subsequently transferred to the Court of Additional District Judge, who accordingly ordered that the same be returned to the appellants for presentation to a Court of competent jurisdiction. It appears no objection was raised by the office while admitting the appeal on 16.1.1979. It is only on 24.12.1979 that Additional District Judge ordered for return of memorandum of appeal for presentation before a competent Court. It is for this reason that appellants while filing the appeal in the Court of District Judge made prayer for condonation of delay in terms of Section 5 and for exclusion of time for bonafide prosecuting the appeal under Section 14 of the Limitation Act. Section 14 of the Limitation Act specifically deals with such a situation. It permits exclusion of time of proceeding bonafide in a Court without jurisdiction. It has not been suggested by the respondent that appellants had at any stage negligent or careless. This beneficial provision contained in Section 14 of the Limitation Act is in fact intended to help the persons who under mistaken belief had been prosecuting the matter but before a wrong forum. As per facts of the present case, I am of the view that the lower appellate Court ought to have condoned the delay, entertained the appeal and decided the same on merits. Appellants cannot be said to be negligent, thus dis-entitling them to this limited relief of a hearing of appeal. The apex Court in Balbir Singh v. Bhag Singh, (1974)76 PLR 321 (S.C.) allowed the prayer of the appellants and extended the period of limitation under Section 5 of the Limitation Act. Following the decision of the apex Court, I allow this appeal, set aside the judgment and decree of the lower appellate Court and remit the papers to District Judge, Faridabad with the direction to admit the appeal and decide the same on merits. Since the matter pertains to the year 1980, the District Judge is directed to expeditiously dispose of the present appeal without any delay preferably within four months of the receipt of the case file. No order as to costs.
6. Parties through their counsel are directed to appear before District Judge, Faridabad on 15.12.1994.