Allowed

Jagdish v. Ghasi

Chhattisgarh HC5 Dec 2019SA/500/2017

Case brief

AI extract

What is this about?

In this second appeal, the High Court allowed the appeal, setting aside the First Appellate Court's refusal to condone delay. The Court held that the appellant must have been given an opportunity to file a properly constituted affidavit and medical certificate before the order dismissing the condonation application could be passed as a grave error, violating liberal construction of limitation.

What did the court decide?

The impugned order dated 22.07.2017 is set aside; matter remitted to the First Appellate Court to give opportunity to file duly constituted affidavit and medical certificate and to decide the applicat

Jagdish Vs Ghasi — Partition | Chhattisgarh HC (2019)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No. 500 of 2017

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1. Jagdish, S/o Late Shri Jagroo, aged about 56 years,

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2. Bodel, S/o late Shri Ramjeet, Age about 28 years,

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Both are resident of Village – Chungadi, Tahsil-
Bhaiyathan, District – Surajpur (C.G.)

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---- Appellants/Plaintiffs.

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Versus

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1. Ghasi, S/o Late Shri Budhra, aged 57 years,

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2. Subhas, S/o Late Shri Dasroo, aged about 32 years,

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3. Dharmjeet, S/o Shri Dasroo, aged about 26 years,

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Above All Resident at Village- Chungadi, Tahsil – Bhaiyathan, District – Surjapur (C.G.)

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4. Chattisgarh State Through the Collector Surjapur (C.G.)

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---- Respondents/defendants

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For Appellant : Mr. S.A. Ansari, Advocate.
For Respondents No. 1 & 3 : Mr. D.N. Prajapati, Advocate.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order On Board

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05/12/2019

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(1)The substantial question of law involved, formulated and

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to be answered in this plaintiffs' second appeal states as
under:-

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“Whether the First Appellate Court is justified
in refusing to condone the delay in filing the
First Appeal under Section 5 of the Indian
Limitation Act, 1963 ?

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(For the sake of convenience, parties would be referred

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hereinafter as per their status shown in the suit before the
trial Court).

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(2)The imperative facts required to be noticed for
adjudication of this appeal are as under:

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(2.1) The plaintiff's suit for partition and possession was
dismissed by the Second Civil Judge, Class -I, Surajpur by
its order dated 19-01-2005 in Civil Suit No. 72-A/2013,
against which the plaintiff preferred first appeal under
Section 96 of CPC along with application for condonation of
delay of 111 days in filing the appeal supported by
affidavit, which was replied by defendants without affidavit.
The application for condonation of delay in filing the appeal
was dismissed finding that application for condonation of
delay is supported by affidavit and it was not duly notarized
and no medical certificate has been filed and, therefore, no
sufficient cause has been shown for delay in filing the
appeal and consequently the first appeal was also dismissed,
against which, this second appeal has been preferred by the
appellants/plaintiff, in which the substantial question of
law has been formulated and set out in opening paragraph of
the judgment.

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(4)Learned counsel appearing for the appellant, would
submit that the finding recorded by the first appellate Court
holding that sufficient cause has not been shown for
condoning the delay in filing the first appeal is perverse
and contrary to the law laid down by the Supreme Court in

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N. Balakrishnan v. M. Krishnamurthy¹ .

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(5)Per contra, learned counsel appearing for the
respondents No. 1 to 3, while supporting the impugned order
would submit that no sufficient cause has been shown by the
plaintiffs for condoning the delay in filing the first
appeal.

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(6)I have heard learned counsel appearing for the parties
and perused the records of both the courts below including
judgment and decree impugned with utmost circumspection.

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(7) The Supreme Court in N. Balakrishnan (supra) observed that the sufficient cause has to be construed liberally especially when the delay is not deliberate and mala fide . Paras 11 & 12 of the said decision are as under :

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11.Rules of limitation are not meant to
destroy the right of parties. They are meant
to see 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. The law of
limitation fixes a lifespan for such legal
remedy for the redress of the legal injury
so suffered. Time is precious and wasted
time would never revisit. During the efflux
of time newer causes would sprout up
necessitation newer persons to seek legal
remedy by approaching the Courts. So a life
span must be fixed for each remedy. Unending

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1 (1998) 7 SCC 123

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period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of 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 rights 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.

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12. A court knows that refusal to 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 has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari {AIR 1969 SC 575} and State of West Bengal Vs. Administrator, Howrah Municipality {AIR 1972 SC 749}.”

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(8)Thus, applying the ratio laid down by the Supreme Court
in N. Balakrishnan (supra) to the facts of the case at hand,
it would appear that though the application was filed
supported by affidavit but that affidavit was not duly
authorized and it nowhere bears the signature of deponent and
no medical certificate was produced, in that circumstances,

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the first appellate Court ought to have given opportunity to
the appellants/plaintiffs to file affidavit and medical
certificate in support of the application for condonation of
delay in filing the first appeal, which has not been done,
and thereby the impugned order has been passed, which is
contrary to law as the opportunity ought to have been granted
to the appellants/plaintiff to file duly constituted
affidavit and medical certificate, if any. Otherwise,
limited enquiry could have been held in the said application
for condonation of delay in filing the appeal.

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(9)As a sequel, the instant second appeal is allowed. The
impugned order dated 22.07.2017 is set aside; the matter is
remitted to the first appellate Court to give opportunity to
the appellants herein to file duly constituted affidavit in
support of application for condonation of delay and other
side also in rebuttal for filing affidavit and, thereafter,
application for condonation of delay in filing the first
appeal will be decided afresh in accordance with law
expeditiously preferably within a period of three months from
the date of receipt of certified copy of this order.

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(10) Registry is directed to return back the record to the
first appellate Court forthwith.

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 Sd/-

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 (Sanjay K. Agrawal)
Judge

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D/-

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Jagdish v. Ghasi

Case brief

What is this about?

What did the court decide?

Jagdish v. Ghasi

Case brief

What is this about?

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