Allowed

Lachinder Mandavi v. Shankar

Chhattisgarh HC5 May 2023SA/346/2019

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal against an order dismissing a second appeal for being time-barred. holding that the delay was condonable under Section 5 of the Limitation Act, the matter was remitted to the lower appellate Court to decide the dispute on merits.

What did the court decide?

Impugned order refusing condonation of 16-day delay set aside; matter remitted to lower appellate Court to register and decide on merits.

Lachinder Mandavi Vs Shankar — Property and Title | Chhattisgarh HC (2023)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Order Sheet

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SA No.346 of 2019

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Lachinder Mandavi Versus Shankar

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05/05/2023	Shri Shobhit Koshta, counsel for appellants.
	Shri P. K. Tulsyan along with Shri Karan Kumar Baharani, counsel for respondents No.1, 2 & 5 to 9. None for respondent No.3, though served.
	Shri Ravipal Maheshwari, Panel Lawyer for the State/respondent No.4. Arguments were heard finally.
	Order dictated in open Court, typed separately, signed and dated.
Tumane	SD/- (Sanjay S. Agrawal) Judge

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No. 346 of 2019

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Lachinder Mandavi S/o Late Maharu Aged About 48 Years R/o Village - Narna, Tehsil - Keshkal, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Jaylal S/o Late Maharu Aged About 45 Years R/o Village - Narna, Tehsil - Keshkal, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Nandu S/o Late Maharu Aged About 42 Years R/o Village - Narna, Tehsil - Keshkal, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Bhago Bai Wd/o Late Maharu Aged About 65 Years R/o Village - Narna, Tehsil - Keshkal, District Kondagaon Chhattisgarh. (Plaintiffs), District : Kondagaon, Chhattisgarh

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---- Appellants/Plaintiffs

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Versus

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Shankar S/o Late Lalsai Mandavi Aged About 33 Years R/o Village - Gavadhu, Police Station - Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Santosh S/o Late Lalsai Mandavi Aged About 31 Years R/o Village - Gavadhu, Police Station - Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Jaisingh S/o Late Lalsai Mandavi Aged About 37 Years R/o Village - Gavadhu, Police Station - Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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State Of Chhattisgarh Through The Collector, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Sahdev Mandavi S/o Late Lalsai Mandavi Aged About 42 Years R/o Village - Gavadhu, Police Station - Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Bajarobai Wd/o Late Mankuram Aged About 42 Years R/o Village - Gavadhu, Police Station - Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Minor Sadauram S/o Late Mankuram Aged About 15 Years (Minor) Through Natural Guardian Mother Bajarobai, Wd/o Late Mankuram, Aged About 42 Years, R/o Village - Gavadhu, Police Station -

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Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Lachni Wd/o Late Mancharam Aged About 40 Years R/o Village - Silati, Police Sation Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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Minor Aasim S/o Late Mancharam Aged About 17 Years (Minor) Through Natural Guardian Mother Lachni, Wd/o Late Mancharam, Aged About 40 Years, R/o Village - Silati, Police Sation Dhanora, Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh

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---- Respondents/Defendants

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(Cause title is taken from CIS)

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Present:-

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Shri Shobhit Koshta, counsel for the appellants. Shri P. K. Tulsyan along with Shri Karan Kumar Baharani, counsel for respondents No.1, 2 & 5 to 9. None for respondent No.3, though served. Shri Ravipal Maheshwari, Panel Lawyer for the State/respondent No.4.

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Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal

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Order On Board

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05/05/2023

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This appeal has been preferred by the plaintiffs under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) questioning the legality and propriety of the order dated 08.01.2019 passed by the learned District Judge, Kondagaon in an unregistered appeal, whereby the appeal preferred by them against the judgment and decree dated 07.09.2018 passed by the Civil Judge Class-II, Keshkal, District Kondagaon in Civil Suit No.7-A/2017, has been dismissed, holding it to be barred by time. The parties shall be referred hereinafter as per their descriptions before the trial Court.

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The appeal has been admitted on the following substantial question of law:-

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“ Whether the finding of the lower appellate Court dismissing the appeal on the point of limitation, is perverse?”

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Briefly stated the facts of the case are that the plaintiff instituted a suit claiming declaration of title and permanent injunction by submitting inter alia that the property in question bearing Khasra No.64/4, 64/11 and 78/20 ad-measuring 3.00, 6,00 and 1.30 acre respectively, total admeasuring 10.30 acre are situated at Village Silhat, Tahsil Keshkal, District Kondagaon. According to the plaintiffs, the property in question was originally held by their predecessor in interest namely Chaitu, who had two sons namely Amlu and Mahru, who was the predecessor in interest of the plaintiffs. It is pleaded further that elder brother of their father namely Amlu was issue less and therefore, he employed defendant No.1 as his servant and the plaintiff’s father also used to call him in his house during festivals and other events, however, while taking advantage of it, he obtained the revenue papers mutated in his name without their knowledge, therefore, they have been constrained to institute a suit in the instant nature.

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The defendants No.1, 2 & 5 while contesting the suit pleaded in their written statement that the suit property was held by said Chaitu who had given the same on lease to their father Lal Say for a period of three years and after the expiry of three years, no action was taken by

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him for taking back the land in question, therefore, they have prescribed their bhumiswami right over it.

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After considering the evidence led by the parties, the trial Court arrived at a conclusion that since the plaintiffs have failed to establish the fact that they are the heirs of said Chaitu, therefore, they are not entitled to be declared the owner of it and, accordingly the suit was dismissed.

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Being aggrieved with the aforesaid judgment and decree, an appeal was preferred by the plaintiffs on 26.10.2018 along with an application for condonation of delay of 16 days. It is pleaded in the said application that their counsel has not intimated regarding the delivery of the impugned judgment nor was it delivered in their presence and came to know about it on 04.10.2018 and immediately on the same day, they applied for obtaining the certified copy of it and, in pursuance thereof, it was delivered on 06.10.2018. It is contended further that an appeal was preferred immediately thereafter on 26.10.2018, therefore, delay of few days be condoned. The said application was contested by the defendants by submitting that since the sufficient cause for its delay has not been explained properly, therefore, the application is liable to be rejected.

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The aforesaid application seeking condonation of delay in preferring the appeal has been rejected by the Court below observing inter alia, while referring to the order sheet dated 07.09.2018, that since the judgment was delivered in their presence and despite that a

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false allegation has been charged upon the Court that it was delivered not in their presence and, observed further that since the each days’ delay have not been explained, therefore, the plaintiffs have failed to establish the sufficient cause for non-filing of the appeal in time and while observing as such, has rejected the same and consequently, the appeal was dismissed holding it to be barred by time.

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Mr. Koshta, learned counsel appearing for the appellants/plaintiffs submits that the finding of the Court below holding that the sufficient cause for condonation of delay of few days’ in filing the appeal has not been shown, is apparently contrary to law. While referring to the order sheet dated 07.09.2018 of the concerned trial Court, it is submitted that at the time of pronouncement of judgment, the plaintiffs were not present as they were appeared through their counsel namely Shri Dinesh Dhruv and, therefore, the observation of the lower appellate Court that despite their presence, the plaintiffs have levelled the false allegations upon the court is not proper as the “decree” alone was in fact read over in their presence, but not the “judgment” as reflected from the close scrutiny of the said order sheet. Further contention of him is that the learned lower appellate Court while considering the application for condonation of delay under Section 5 of the Indian Limitation Act, 1963, ought to have adopted a liberal view, particularly when there was no inordinate delay in filing the appeal. Having failed to do so, the Court below has committed an illegality in refusing to condone the delay of 16 days’ in preferring the

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appeal under Section 96 of CPC. In support, he placed his reliance upon the decisions delivered by the Supreme Court in the matter of N. Balakrishnan Versus M. Krishnamurthy, reported in AIR 1998 SC, 3222 and M/s GMG Engineering Industries and others vs. M/s ISSA Green Power Solution and others, reported in AIR 2015 SC 2675 respectively.

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On the other hand, learned counsel appearing for the respondents/defendants have supported the order impugned as passed by the learned appellate Court, therefore, it does not require to be interfered.

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I have heard learned counsel for the parties and perused the entire record carefully.

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Before proceeding with the matter, it is necessary to examine the concerned order sheet dated 07.09.2018 of the trial Court, which reads as under:-

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07.09.2018 oknh dza- 01 ls 03 lfgr rFkk 04 }kjk Jh fnus’k /kqzo vf/kmifLFkr A

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izfroknh dza- 01] 02] 05 rFkk 08 lfgr rFkk daz- 06 dh vksj ls c?ksy vf/k0 mi0A

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izfroknh daz- 03 o 04 ,di{kh; ?kksf”krA

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izdj.k “ fu.kZ; ” gsrq fu;r gSA

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i`Fkd ls fu.kZ; rS;kj dj [kqys U;k;ky; esa ?kksf”kr fd;k x;kA r~nkuqlkj oknhx.k dk okn fujLRk fd;k x;kA

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fu.kZ; ds vuqlkj vkKkfIr cuk;h tkosaA

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izdj.k dh dk;Zokgh lekIr A

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fu;r le;kof/k ds Hkhrj ifj.kke ntZ dj] izdj.k ds

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vfHkys[kks dks O;ofLFkr dj vfHkys[kkxkj esa] fMdzh ij gLrk{kj i’pkr~] Hkstk tkosaA

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iqu’p%&

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vkKkfIr fMdzh rS;kj dh xbZ A mifLFkr i{kdkjksa dks i<+dj lquk;k o le>k;k x;kA

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mHk; i{kdkjksa dks lqpuk ckor~ fMdzh lwpuk cksMZ ij yxk;k tkosaA

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mHk; i{kdjksa dks fMdzh ij ;fn dksbZ vkifRRk gks rks rhu fnol ds Hkhrj bl U;k;ky; esa vkifRRk dks is’k dj ldrs gSA

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vkKkfIr dks gLrk{kj o fnukafdr djus gsrq rhu fnol i’pkr~ fnukad 11-09-2018 dh frfFk nh tkrh gSA

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okLrs fMdzh ij gLrk{kj gsrq fu;r fnukWd- 11-09-2018-

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A bare perusal of the aforesaid order sheet, it appears that the “judgment” dated 07.09.2018 was delivered in presence of plaintiffs’ No.1 to 3 and their counsel namely Shri Dinesh Dhruv, who also appeared on behalf of the plaintiff No.4 and, the “decree” of it was, later on read over in presence of all the parties. It appears further that after read over the “decree” as such, an objection to it was invited, if any, and the matter was thereupon directed to be put up on 11.09.2018, so as to prepare the “decree” after consideration of the objection of the parties. The observation of the lower appellate Court that a false allegation has been levelled upon the Court, thus, appears to be not based upon the due examination of the said order sheet in its true manner, instead it rather appears to be the hyper technical approach of the said court.

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Be that as it may, none were found to be present on 11.09.2018 and decree was accordingly drawn on 11.09.2018. It appears further that upon knowing the delivery of said judgment of the concerned trial Court on 04.10.2018, an application for obtaining the certified copy of it was made by the plaintiffs on the same day and, in pursuance thereof, it was delivered on 06.10.2018 and appeal was thereafter preferred on 26.10.2018 along with an application for condonation of delay of 16 days.

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It is now necessary at this stage to examine the provisions prescribed under Section 5 of the Indian Limitation Act, 1963, which reads as under:-

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“5. Extension of prescribed period in certain cases.– Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

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Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”

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Perusal of the aforesaid provision makes it clear that the Legislature had left the term “sufficient cause” undefined and unillustrated for what is “sufficient cause” in one case may not be so in another case. Thus, the said term is kept elastic and unfettered discretion has been conferred on the Courts to do substantial justices considering the facts and circumstances

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of the case. No hard and fast rule, therefore, can be laid regarding condonation of delay. The sums and substance would be that the discretion has to be exercised judicially and the approach of the Court should be liberal and pragmatic, but not pedantic.

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Based upon the aforesaid provision, the expression “sufficient cause” has to be construed liberally in order to provide substantial justice to the parties unless and until the appeal is preferred by an inordinate delay.

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Here in the instant matter, the impugned judgment and decree was questioned with a delay of just a few days of 16 days, but, the lower appellate Court while misinterpreting the said order sheet, dated 07.09.2018 of the concerned trial Court, as observed hereinabove and, that by adopting the hyper technical approach, has rejected the said application by observing inter alia, that each days’ delay has not been explained, though, it ought to have adopted a liberal view by condoning the delay in filing the appeal in order to provide substantial justice to the parties, particularly when there was delay of few days’ in preferring the appeal against the judgment dated 07.09.2018 and the decree dated 11.09.2018 passed by the concerned trial Court in Civil Suit No.7-A/2017.

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It is profitable at this juncture to follow the principles laid down by the Supreme Court in the matter of N. Balakrishnan Versus M. Krishnamurthy, (supra), wherein it has been held that sufficient cause

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has to be construed liberally especially when the delay is not inordinate and malafide. Relevant paragraphs 11 and 12 of the said judgment reads 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 lifespan must be fixed for each remedy. Unending 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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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 [AIR1972 SC 749].”

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Similar is the view taken by the Supreme Court in the matter of M/s GMG Engineering Industries and others vs. M/s ISSA Green Power Solution and others (supra), whereby while interpreting the expression

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“sufficient cause”, it was observed at para 8, as under:-

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“It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bona fide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence.”

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Considering the facts and circumstances of the case, in the light of the principles laid down in the abovereferred matters, it thus appears that the appellants/plaintiffs have shown their sufficient cause for condonation of delay in filing the said appeal against the said judgment and decree of the concerned trial Court passed in the said Civil Suit No.7-A/2017. The substantial question of law is, thus, answered accordingly.

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The appeal is accordingly allowed and the impugned order dated 08.01.2019 passed by the lower appellate Court in an unregistered appeal, refusing to condone the delay of 16 days in preferring the appeal under Section 96 of the CPC against the said judgment and decree passed by the concerned trial Court in Civil Suit No.7-A/2017 is hereby set aside and, the matter is accordingly remitted to the learned lower appellate Court with a direction to register it in its file and decide the same on merits in accordance with law. The parties are directed to appear before the concerned lower appellate Court on 06.07.2023.

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The Registry is directed to transmit the entire record forthwith. No order as to costs.

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SD/- (Sanjay S. Agrawal) Judge

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Tumane

Lachinder Mandavi v. Shankar

Case brief

What is this about?

What did the court decide?

Lachinder Mandavi v. Shankar

Case brief

What is this about?

What did the court decide?

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