Allowed

Khiru (Dead) Through Lrs. v. (a ) Mini Bewa

Chhattisgarh HC5 Feb 2020SA/285/2008

Case brief

AI extract

What is this about?

In this second appeal, the High Court allowed the appeal set aside the first appellate judgment, and held that the 10-day delay was condonable under a liberal interpretation of sufficient cause, permitting restoration of the first appeal for final disposal on merits.

What did the court decide?

Second appeal allowed; impugned judgment set aside; 10-day delay condoned; first appeal restored within three months for final disposal on merits.

Khiru (Dead) Through Lrs. Vs (a ) Mini Bewa — Property and Title | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Second Appeal No. 285 of 2008

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Khiru S/o Late Tepsi (died) through LR's :-

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(a). Lavang Ram, Aged about 38 years, S/o Late
Khiru Ram.

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(b). Pawan Ram, Aged about 40 years, S/o Late
Khiru Ram.

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Both are residents of Village Peta, Gram
Panchayat Peta, Vikas Khand Bageecha, Tahsil
Bageecha, Distt. Jashpur, Chhattisgarh.

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---Appellants/LR's of plaintiff

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Versus

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1. (A). Mst. Mini Bewa W/o Late Johan, Aged 65 years, Caste Uraon, Occupation Agriculturist, R/o Peta, Tahsil Bagicha, Distt. Jashpur, Chhattisgarh.

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(B). Nandkeshwar S/o Late Johan, Aged about 40
years, Caste Uraon, Occupation Service, R/o
Behind Gov.t High School Jashpur, Distt. Jashpur,
Chhattisgarh. Permanent Village Jujgoo, Tahsil
Bagicha, Distt. Jashpur, Chhattisgarh.

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(c). Vishwanath s/o Johan, Aged about 42 yars,
Caste Uraon, Occupation Agriculturist, R/o
Jujgoo, Tahsil Bagicha, Distt. Jashpur,
Chhattisgarh.

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(D). Shiv Prasad S/o Johan, Aged 35 years, Caste
Uraon, Occupation Agriculturist, R/o Jujgoo,
Tahsil Bagicha, Distt. Jashpur, Chhattisgarh.

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2.Baiga s/o Late Keshav (died) through LR's :-

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(A). Smt. Devgadi Bai W/o Late Baiga, Aged about
58 years.

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(B). Ashok Ram S/o Late Shri Baiga, Aged about 30
years.

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Both are R/o Village Jujgoo, P.H. No. 24, R.N.M.
and Tahsil Bagicha, Distt. Jashpur, Chhattisgarh.

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3. Rameshwar S/o Keshav, Aged 56 years, Caste Uraon, Occupation Agriculturist, R/o Jujgoo, P.H. No. 234, Ra.Ni.M and Tahsil Bagicha, Distt. Jashpur, Chhattisgarh.

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4. Bhuneshwar S/o Johan @ Gahnu, Aged 26 years, Caste Uraon, Occupation Agriculturist, R/o Jujgoo, P.H. No. 24, Ra.Ni.M. and Tahsil Bagicha, Distt. Jashpur, Chhattisgarh.

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5. Bhushan S/o Khora, Aged – years, Caste Korwa, Occupation Agriculturist, R/o Jujgoo, P.H. No. 24, Ra.Ni.M. and Tahsil Bagicha, Distt. Jashpur, Chhattisgarh.

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6. Chhattisgarh State, through Collector, Jashpurtnagar, Distt. Jashpur, Chhattisgarh. --- Respondents/Defendants

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`For Appellants`	`:-`
		`Mr. N.K. Mehta, Advocate`
`For Respondents`	`No.`	`1, 3, 4 and 5 :-`
		`Mr. Rakesh Pandey, Advocate`
`For Respondents`	`No.`	`2(A) and (B) :-`
		`Mr. Manoj Sinha, Advocate`
`For Respondent`	`No.`	`6/State` `:-`
		`Mr. Ravi Bhagat, Dy. G.A.`

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Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board

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05/02/2020

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1.Thissecondappealpreferredbythe

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appellants/LRs. of plaintiff was admitted for
hearing on the following substantial question of
law :-

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“Whether the lower appellate Court was
not justified in taking a hyper
technical view in dismissing the appeal
as barred by limitation ?”

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(For the sake of convenience, the parties will be

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referred hereinafter as per their status in the
trial Court.)

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2.Original plaintiff – Khiru Ram filed a suit for
cancellation of sale deed dated 12/06/1979,
declaration of title, possession and permanent
injunction against the defendants which was

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dismissed by the trial Court vide judgment and
decree dated 08/11/2006 against which the
plaintiff preferred an appeal under Section 96 of
the CPC along with an application for condonation
of delay for condoning the delay of 10 days in

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filing the appeal thereby, assigning the reason
that the sole appellant/plaintiff himself was

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unwell and therefore, he could not contact his
counsel and thus, the filing of the first appeal
got delayed by 10 days. Learned first appellate

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Court did not found favour with the application
and rejected it holding that sufficient cause for
delay in filing the appeal has not been shown by
the plaintiff and ultimately, dismissed the
appeal as well vide judgment and decree dated
16/04/2008 against which this second appeal under
Section 100 of the CPC has been preferred by the
appellants/LRs. Of the plaintiff in which
substantial question of law has been framed and
set out in the opening paragraph of this
judgment.

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3.Mr. N.K. Mehta, learned counsel appearing for the
appellants/LRs. Of the plaintiff would submit
that sufficient cause has been shown by the
plaintiff in the application for condonation of
delay for delay of 10 days in filing the appeal
which is supported by his affidavit and
certificate of the village sarpanch and the
matter was inquired into, yet the first appellate
Court dismissed the appeal on the ground that no
sufficient cause has been shown by the plaintiff

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for delay in filing the appeal, as such, the
second appeal deserves to be allowed by setting
aside the judgment and decree of the first
appellate Court.

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4.Mr. Rakesh Pandey and Mr. Manoj Sinha, learned
counsel appearing for the respondents would
support the judgment and decree passed by the
first appellate Court and wold submit that the
second appeal deserves to be dismissed.

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5.I have heard learned counsel for the parties,
considered their rival submissions made herein-
above and went through the records with utmost
circumspection.

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6.The Supreme Court in the matter of Collector.
Land Acquisition, Anantnag and another v. Mst.
Katiji and others1 while construing the meaning
of “sufficient cause” under Section 5 of the
Limitation Act, 1963 held that the Courts should
adopt a liberal and justice-oriented approach and
condoned the delay of four days in filing appeal,
under Section 5 of the Limitation Act, 1963.
Their Lordships of the Supreme Court further held
that the High Court erred in dismissing the
appeal on hyper technical ground of bar of
limitation and observed as under: -

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“The courts therefore have to be informed
with the spirit and philosophy of the
provision in the course of the
interpretationoftheexpression
"sufficient cause". So also the same

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1(1987) 2 SCC 107

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approach has to be evidenced in its
application to matters at hand with the
end in view to do even-handed justice on
merits in preference to the approach
which scuttles a decision on merits.”

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7.Similarly, the Supreme Court in N. Balakrishnan

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v. M. Krishnamurthy² observed that sufficient cause has to be construed liberally especially when the delay is not deliberate and mala fide . Paragraphs 11 and 12 of the report state as

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under:-

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“11. Rule 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. 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 wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. 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 putt 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

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2 (1998) 7 SCC 123

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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 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. The Administrator, Howrah Municipality [AIR 1972 SC 749]. ”

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8.Thus, applying the principle of law laid down by

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the Supreme Court in N. Balakrishnan(supra)
which has been followed by their Lordships in
Bhivchandra Shankar More v. Balu Gangaram More
and Ors.3 to the facts of the case at hand, it is
quite vivid that plaintiff's suit for
cancellation of the sale deed and declaration of
title, possession and permanent injunction was
dismissed by the trial Court on merits against
which he filed an appeal along with an
application for condonation of delay for
condoning the delay of 10 days in filing the
appeal which was supported by his affidavit as
well as the certificate of the village sarpanch

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and the matter was also inquired into which

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remained uncontroverted and no evidence was led 3 (2019) 6 SCC 387

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against it, as such, in the considered opinion of
this Court, sufficient cause has been shown by
the plaintiff for the delay of 10 days in filing
the appeal. The first appellate Court has
gravelly legally erred in taking a hyper
technical view and rejecting the application for
condonation of delay and subsequently, dismissing
the appeal as well. The appeal, particularly for
declaration of title, ought to have been decided
on merits.

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9.Consequently, the instant second appeal is

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allowed. The impugned judgment and decree passed
by the first appellate Court is set aside; delay
in filing the appeal is condoned and the first
appeal is restored to its original file for
hearing and disposal on merits in accordance with
law preferably within a period of three months
from the date of receipt of record and certified
copy of this order.

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10.Registry is directed to return the records to the
first appellate Court forthwith.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Khiru (Dead) Through Lrs. v. (a ) Mini Bewa

Case brief

What is this about?

What did the court decide?

Khiru (Dead) Through Lrs. v. (a ) Mini Bewa

Case brief

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