Dismissed

Majaj Akhtar and 7 Others v. Labour Sahakari Awas Samiti Ltd. and 4 Others

Allahabad HC11 Feb 2020SAPL/166/2020

Case brief

AI extract

What is this about?

In this second appeal against dismissal of a suit for cancellation of sale deed as barred by limitation, the court held that the appellant could not claim benefit of Section 14 of the Limitation Act for delay caused by self-inflicted lapses. The ex parte order dismissing the restoration application was upheld for lack of cogent reasons.

What did the court decide?

Second appeal dismissed; original suit affirmed as barred by limitation.

Majaj Akhtar and 7 Others Vs Labour Sahakari Awas… — Property and Title | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 166 of 2020

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Appellant :- Majaj Akhtar And 7 Others Respondent :- Labour Sahakari Awas Samiti Ltd. And 4 Others Counsel for Appellant :- Sudhir Kumar Singh

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Hon'ble Vivek Agarwal,J.

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Heard Sri Sudhir Kumar Singh, learned counsel for the appellants.

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This second appeal has been filed by the plaintiff under provisions of Section 100 of Code of Civil Procedure.

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Appellant is aggrieved by judgment and decree dated 6^th November, 2019 passed by Additional District Judge, Court No.11, Moradabad in Civil Appeal No.54 of 2017 whereby first appeal filed on behalf of the plaintiff being aggrieved by the judgment and decree dated 11.04.2014 passed by learned Additional Civil Judge (Junior Division), Court no.3, Moradabad in original suit No.193 of 1996 dismissing the suit as barred by limitation has been affirmed.

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Learned counsel for the appellants submits that a suit for cancellation of sale deed dated 07.01.1985 was instituted on 03.04.1996. It is submitted that this suit was dismissed in absence of the plaintiff and, thereafter plaintiff had moved an application under Order 9 Rule 9 C.P.C. as is available on record as Annexure-3 in which, it was specifically mentioned that plaintiff could not appear before the Court on 11.04.2014 as appellant no.7 who is Pairokar was ill and, therefore, prayed for setting aside the ex parte order and for restoration of the original suit to its original number.

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However, it is apparent that no reason has been assigned, as to why, counsel who was engaged by the plaintiff did not appear before the Trial Court. Trial Court has specifically noted that neither plaintiff nor their counsel was present and, thereafter

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taking note of the fact that suit was not instituted within the prescribed time limit, inasmuch as, suit was filed on 03.04.1996 whereas sale deed in question is dated 07.01.1985 dismissed, the suit as barred by limiation.

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Learned counsel for the appellant submits that there was a right ingrained in the plaintiff to proceed with the suit and suit was not barred by limitation. He submits that he had moved an application raising objection to the mutation which was carried out by the Tehsildar vide order dated 06.11.1985 and Tehsildar had reversed the order dated 06.11.1985 vide order dated 16.02.1993 at his instance, therefore, suit was within limitation as he was pursuing another civil remedy before another forum and thus, in terms of the provisions contained in Section 14 of the Limitation Act, 1963, suit could not have been dismissed as barred by limitation.

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Fact of the matter is and it is mentioned in para-3 of the plaint also that plaintiff had raised an objection before the Tehsildar against the Mutation Order dated 06.11.1985 though, no date is mentioned as to when said objection was filed but it is admitted that vide order dated 16.02.1993, Tehsildar had set aside earlier order of mutation dated 06.11.1985 and name of the plaintiff was restored in the revenue records.

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However, no reason has been assigned as after culmination of the proceedings before the revenue authorities in favour of the plaintiff why plaintiff waited over a period of three years to institute a suit for cancellation of sale deed dated 07.01.1985. Therefore, the trial court has rightly held that suit is barred by limitation inasmuch as plaintiff was not entitled to take benefit of Section 14 of the Limitation Act, 1963 for his own mistake. Once, order was passed by the revenue authorities on 16.02.1993, then suit should have been instituted for cancellation of the sale deed within three years from

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16.02.1993. Further as far as application under Order 9 Rule 9 C.P.C. is concerned, that too has been rightly rejected. Plaintiff has failed to assign any cogent reason for absence of his counsel and in fact, there is no whisper in the application under Order 9 Rule 9 C.P.C. as to the cause of absence of the counsel on 11.04.2014 when impugned judgment was passed by the Trial Court.

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Learned first appellate court has not committed any irregularity or illegality and affirming the findings recorded by the learned Trial Court.

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Appellant-plaintiff cannot take advantage of its own lapses and laches. It is no more open to him to say that his right to represent the case properly has been taken away. Suit which was filed on 03.04.1996 was lingered on for about 18 years and, thereafter, plaintiff's counsel chose not to appear when ex parte order was passed. There is no explanation for the absence of the counsel.

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As has been mentioned above, there is no illegality in the ex parte order as it has taken note of all the relevant facts within its sweep and, thereafter discussing the merits, has passed the order, therefore, this second appeal does not give rise any substantial question of law.

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The Second appeal is, accordingly, dismissed.

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Order Date :- 11.2.2020 Ashutosh

Majaj Akhtar and 7 Others v. Labour Sahakari Awas Samiti Ltd. and 4 Others

Case brief

What is this about?

What did the court decide?

Majaj Akhtar and 7 Others v. Labour Sahakari Awas Samiti Ltd. and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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