Allowed

Thanu Ram Sahu and Ors. v. State of C.G. and Ors.

Chhattisgarh HC3 Feb 2014SA/323/2001

Case brief

AI extract

What is this about?

The High Court allowed this second appeal against the dismissal of a substantive appeal as time-barred. The Court held that a three-day delay caused by the serious illness and subsequent death of a plaintiff constituted sufficient cause for condonation under Section 5 of the Limitation Act. The impugned order was set aside.

What did the court decide?

The appeal was allowed, the impugned judgment and decree were set aside, and the first appeal was restored to its original file for hearing and disposal on merits afresh.

Thanu Ram Sahu and Ors. Vs State of C.G… — Civil Procedure and Limitation | Chhattisgarh HC (2014)

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HIGH COURT OF CHHATTISGAmi

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Sinle Bench: g

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Hcn’ble Mr. Justcei Sanajy K. Arawalg

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i Second Appeal No.323 of 2001

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APPELLANTS Plaihtiffs

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Thanuram Sahu & others.

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Vs.

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RESPONDENTS The State of Chhattisgarh Defendants & others. SECOND MPEAT. UNDER SECI'ION 100 OF TEE CODE OF CIILV PROCEDEUR, 1908 Present: Mr. Sun il Sahu & Mr. Avinash Singh, counsel for the appelants.l Mr. Vinay Harit, Dy. Advecate General for the St ate/ respondents .

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ORAL ORDER (Passed on 04 .02.20l4) (1) For sake of convenience, the parties would be referred hereinafter as per their statue before the trial Court. (2) This plaintiffs’ second appeal under Section IOO of the Code of Civil Procedure (for short ‘ the CPC’) challenging the judgment and decree dated 25.07.2001 passed by First Additional District Judge, Mahasamund in Civil Appeal— unregistered dismissing the first appeal as barred by limitation. (3) VFacts necessary for disposal of this appeal are that: Plaintiffs’ suit for declaration and permanent injunction came to be dismissed by the trial Court on 5.9.2000. Plaintiffs made an application for certified

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copy of the same on 19.9.2000, which was received by them on 30.l0.2000. Thereafter, they preferred first appeal under Section 96 of the CPC along with application for condonation of delay of three days in filing the appeal on 20.1l.2000. The aforesaid application for condonation of delay of three days was rejested by the first appellate Court as day to day delay has not been explained by the plaintiffs and consequently the first appeal has also been dismissed by the first appellate Court. (4) Learned counsel appearing for the appellants would submit that the sufficient cause was shown for not filing the appeal within limitation and, therefore, the finding recorded by the first appellate Court being perverse is liable to be dismissed. (5)‘ On the other hand, learned Counsel for the State supported the judgment & decree impugned. (6) The appeal was admitted on Ol.02.20l2 for hearing on the following substantial question of law: “Whether the first appellate court was justified in dismissing the appellant’s appeal as time barred ?

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(7) l have heard learned counsel appearing for the parties and perused the papers available in the case. (8) A bare perusal of the record would show that plaintiffs, after information about the dismissal of ‘the the suit by trial Court, they applied for

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certified copy of the judgment & decree on l9.9.2000, ‘ whioh was delivered to them on 30.10.2000, thereafter on 20.11.2000 the plaintiffs preferred first appeal 1 under Section 96 of the CPC alonqwith application for condonation of delay stating that plaintiffs’ aunt Smt. Girija Bai was seriously ill and ultimately she died‘qn 17.11.2000 and, therefore, the appeal could not be filed within time. (9) Fact remains that plaihti^ffs have shown sufficient cause for the delay of three days in filing the appeal that one of plaintiffs namely Smt. Girija Bai was seriously ill andrtherefore, the appeal could not be filed within time. It appears from the record, plaintiff No. 5 Smt. Girija Bai was seriously ill and ultimately she died on 17.11.2000 and, thereby, appeal was preferred on 20.11.2000 with the delay of three days only. $10)^Thus, the delay in filing the appeal of three days on account of death of one of the plaintiffs is held to be sufficient cause. (11) It is trite law that the approach of court should be liberal while dealing with application for condonation of del ay. (12) The Supreme Court in case of N. Balakrishnan v. M. Krishnmrthy, reported in (1998) 7 soc 123, has held in para 13 to 15 as under :

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“l3. Rules of limitation are not meant to destroy the right of parties. They are meant to se that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life—span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the remedy vested time would never revisit. During efflux of time newer causeS would sprout up‘ necessitating newer persons to seek remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of r limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 14. A court knows that refusal of condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court “sufficient has held that the words cause” under Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice vide Shankuntala Devi Jain v. Kuntal Kumari and

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State of West Bengal v. The Administrator, Howrah Municipality.

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It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it/ is not put forth as part of a dilatory strategy the court must Show utmost consideration to the suitor. But when there is reasonable ground to think that. the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of ' the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.”

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(13) For the reasons mentioned hereinabove, in the considered opinion of this court, the first appellate court was not justified in dismissing the application « for condonation of delay in filing the appeal and consequently dismissing the appeal.

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(14)^{Consequently,} the instant appeal is allowed. The impugned judgment and decree passed by the first

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appe‘llate Court is hereby set aside. First Appeal in i Thariuram Sahu & others vs. State of Madhya Pradesh & others is restored to its original file for hearing andidisposal on merits afresh in accordance with law. The order of the first appellate Court rejecting the application for condonation of delay in filing the appeal. is restored to itS original file for hearing and disposal on merits afresh in accordance with law.

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(15) The parties are directed to appear before the first appellate Court on 24th February, 2014.

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(16) Records of the courts below be sent back to the first appellate court forthwith. (1'7 ) No order as to cost. Sd/-

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Sd/Sanjay K. Agrawal Judge {F lg

Thanu Ram Sahu and Ors. v. State of C.G. and Ors.

Case brief

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Thanu Ram Sahu and Ors. v. State of C.G. and Ors.

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