Allowed

Dayaram and Ors. v. Meghnath and Ors.

Chhattisgarh HC8 Sept 2024SA/181/2014

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Chhattisgarh addressed whether the First Appellate Court erred in dismissing a title suit appeal due to a four-month delay. The appellant argued the delay was excusable because counsel had not informed them of the judgment promptly. The High Court allowed the appeal, holding the delay was properly explained and remitting the matter to the lower court for a

What did the court decide?

Second appeal allowed; order of First Appellate Court set aside; matter remitted to First Appellate Court to decide the appeal afresh on merits within 90 days.

Dayaram and Ors. Vs Meghnath and Ors. — Partition | Chhattisgarh HC (2024)

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2024:CGHC:35096

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Digitally signed by REKHA SINGH

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 181 of 2014

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1 - Dayaram S/o Hirau Satnami Aged About 49 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., Chhattisgarh

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2 - Vidyanand S/o Hirau Satnami Aged About 40 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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3 - Samorvan S/o Hirau Satnami Aged About 51 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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4 - Nirmalabai D/o Hirau Satnami Aged About 44 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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5 - Moharmati D/o Hirau Satnami Aged About 38 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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6 - Kamleshwari D/o Hirau Satnami Aged About 35 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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7 - Heera Bai D/o Mahettar Satnami Aged About 67 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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8 - Heermat Bai D/o Mahettar Satnami Aged About 54 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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9 - Bhagela S/o Bhaklu Satnami Aged About 49 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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10 - Jhaduram S/o Bhaklu Satnami Aged About 46 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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11 - Premlal S/o Bhaklu Satnami Aged About 44 Years R/o VillagePangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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... Appellants/Plaintiffs

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versus

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1 - Meghnath S/o Mangalchand Satnami Aged About 44 Years R/o Village- Pangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., Chhattisgarh

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2 - Radheshyam S/o Mangalchand Satnami Aged About 42 Years R/o Village- Pangaon, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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3 - Shyama Bai D/o Mangalchand Satnami Aged About 48 Years R/o Amethi, Tah. And P.S. Palari, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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4 - Rambai D/o Mangalchand Satnami Aged About 46 Years R/o Rasedi, Tah. And P.S. Baloda Bazar, Distt. Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh

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5 - Punna Bai D/o Dwarika Gendre R/o Datan Khaira, Tah. And P.S. Palari, Distt. Baloda Bazar C.G.

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6 - State Of Chhattisgarh Thru- The Collector, Baloda Bazar C.G.

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... Respondents

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(Cause-title taken from Case Information System)

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For Appellants/Plaintiffs : Mr. Prateek Sharma, Advocate For Respondents No.1 to 5 : Mr. Vivek Shrivastava, Advocate For State/Respondent No.6 : Ms. Neelima Singh Thakur, Panel Lawyer

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Hon'ble Shri Justice Rakesh Mohan Pandey

Order on Board

09.09.2024

Heard.

This second appeal was admitted on 26.04.2022 on the following

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substantial question of law:-

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“Whether, the learned First Appellate Court is justified in dismissing the appeal as barred by limitation ignoring well settled legal position with regard to condonation of delay ?

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The plaintiffs/appellants filed a civil suit for declaration of title and permanent injunction pertaining to the lands mentioned in Schedules A & B situated at Village-Pangaon, Patwari Circle No.17, Tehsil and District Balodabazar inter alia on the ground that the suit property is ancestral property recorded in the names of forefathers of the plaintiffs and defendants No.1 to 5. Defendants No.1 to 5 filed their written statements and denied the plaint averments. The learned Trial Court framed issues. The parties to the suit led evidence thereafter the learned Trial Court partly decreed the suit and declared title of the plaintiffs No.1 to 6 only over survey No.346 ad-measuring 0.324 hectares and also granted a decree of injunction vide judgment and decree dated 07.01.2013.

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The plaintiffs preferred an appeal against the judgment passed by the learned Trial Court before the learned District Judge, Balodabazar (C.G.) along with an application for condonation of delay as there was a delay of approximately four months in filing the appeal. In the application moved under Section 5 of the Limitation Act, a plea was taken by the appellants that on 07.01.2013, the judgment and decree were passed by the learned Trial Court and the same was not communicated to the plaintiffs by their counsel. It was further stated that after ‘Chaitra Navratri’ on 21.04.2013 the appellants approached their counsel and it was informed that the suit had partly been decreed and an application to supply a certified copy of the judgment and decree was moved on 25.04.2013 and on 07.05.2013, it was collected by their counsel and later on, it was sent to the appellants through the post, which was received by them on 16.05.2013. Immediately thereafter, the appellants could not prefer the first appeal before the learned District Judge,

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Balodabazar on account of summer vacation and on the opening day i.e. 10.06.2013, the appeal was preferred. The defendants filed their reply to the application for condonation of delay and specifically stated that the appellants/plaintiffs were participating in the original proceeding before the learned Trial Court and they had knowledge of the date of judgment and no sufficient explanation has been offered concerning inordinate delay.

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Learned First Appellate Court vide order dated 22.03.2014 rejected the application moved under Section 5 of the Limitation Act on the ground that the limitation to prefer an appeal according to the provisions of Article 116(B) of the Limitation Act is 30 days and the appeal has been preferred with a delay of four months. It is further observed that the judgment and decree were passed by the learned Trial Court on 07.01.2013 whereas the appeal was preferred on 10.06.2013. It is also observed that the appellants came to know about the passing of the judgment and decree on 21.04.2013 and even thereafter, they took more than 1½ months to file an appeal and there is no sufficient explanation with regard to the delay and thus, dismissed the appeal also.

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5. Learned counsel appearing for the appellants/plaintiffs submitted that along with the memo of appeal, an application under Section 5 of the Limitation Act was moved assigning sufficient reasons. Mr. Sharma further submitted that the delay was properly explained by the plaintiffs. He further contended that the limitation period to file a first appeal is 30 days and there was a delay of approximately four months in filing the appeal. He also submitted that no communication was made by the counsel of the plaintiffs appearing before the Trial Court and when the

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plaintiffs approached their counsel, it was informed that the civil suit had partly been decreed. Mr. Sharma also contended that thereafter an application to supply a certified copy of judgment and decree was moved on 25.04.2013, which was supplied to the counsel for the plaintiffs on 07.05.2013. He further argued that the certified copy was served on the appellants on 16.05.2013. It is also argued that on account of summer vacation, the appellants could not prefer an appeal and immediately after the expiry of the summer vacation on 10.06.2013, the appeal was preferred. He further stated that the plaintiffs had explained the delay properly before the Court below but the application for condonation of delay was rejected. He also stated that the Court should have taken a lenient view while dealing with the application for condonation of delay. In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of N. Balakrishnan V. M. Krishnamurthy, 1998 (7) SCC 123.

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On the other hand, Mr. Shrivastava, the learned counsel appearing for defendants No.1 to 5 would oppose the submissions made by Mr. Sharma. He submitted that there was an inordinate delay of four months in filing the first appeal. He further submitted that the delay was not properly explained by the plaintiffs. He also contended that the plaintiffs were participating before the Trial Court in the civil suit and they had knowledge of the date of judgment but they deliberately did not approach their counsel on 07.01.2013 or thereafter. He also contended that for more than three months, the plaintiffs kept mum and thereafter moved an application to supply a certified copy and thus, the plaintiffs were not vigilant towards their rights. He further argued that the learned First

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Appellate Court rightly dismissed the appeal on the ground of limitation.

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Ms. Thakur, the learned Panel Lawyer appearing for the State would support the order passed by the Court below.

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I have heard learned counsel appearing for the parties and perused the records.

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Admittedly, a civil suit was filed by the plaintiffs for declaration of title and permanent injunction and the same was partly decreed by the learned Trial Court vide judgment and decree dated 07.01.2013. Since the suit was partly decreed, the plaintiffs preferred an appeal along with an application for condonation of delay before the First Appellate Court. There was a delay of more than four months in filing the appeal as the judgment was passed by the learned Trial Court on 07.01.2013 and the appeal was preferred on 10.06.2013. A perusal of the application moved under Section 5 of the Limitation Act would show that the plaintiffs approached their counsel on 25.04.2013 after ‘Chaitra Navratri’. It is further pleaded by the plaintiffs that on 25.04.2013, an application to supply a certified copy was moved and the same was supplied on 07.05.2013 to their counsel. The appellants/plaintiffs are residents of Village-Pangaon, Tehsil and District-Balodabazar. A copy of the judgment and decree was sent to the plaintiffs by their counsel and the same was received on 16.05.2013. It is not in dispute that in the month of May, there was summer vacation and the Court reopened on 10.06.2013 and on that day, the appeal was filed.

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From a perusal of the above-stated facts, in the opinion of this Court, the appellants/plaintiffs succeeded in explaining the delay properly.

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11. In the matter of N. Balakrishnan (supra) , while dealing with a similar issue in paras 11 & 12 the Hon’ble Supreme Court held as 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 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. 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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Taking into consideration the facts discussed-above and the law laid down by the Hon’ble Supreme Court in the matter of N. Balakrishnan (supra) , the order dated 22.03.2014 passed by the learned First Appellate Court is not sustainable in the eyes of the law, therefore, the same is hereby set aside and the matter is remitted back to the First Appellate Court to decide the appeal afresh on merits after affording the due opportunity of hearing to the parties.

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It is made clear that the learned First Appellate Court shall make all endeavours to conclude the proceedings of the first appeal preferably within a period of 90 days taking into consideration the fact that the civil

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suit was filed on 15.05.2009.

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14. In view of the above, the instant second appeal is allowed .

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Sd/-

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(Rakesh Mohan Pandey)

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Judge