Vishwajeet Vs Firatu

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2025:CGHC:8224

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 557 of 2022

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1 - Vishwajeet S/o Diwanchand, Aged About 46 Years Occupation - Agriculture /mistri, R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora, District : Mahasamund (C.G.)

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2 - Neela @ Leela Moti, Aged About 65 Years, Punjabi, Occupation - Housewife, R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora, District : Mahasamund, (C.G.)

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... Appellants/Defendants versus

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1 - Firatu S/o Ujal, Aged About 40 Years Sanwara, R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora, District : Mahasamund (C.G.)

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2 - Rohit S/o Ujal, (Died) Through His Legal Representative R/o Anwara, R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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2.1 - A. Smt. Kasturi, W/o Late Rohit, Aged About 35 Years R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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2.2 - B. Dayanidhi, D/o Late Rohit, Aged About 27 Years R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund Chhattisgarh.

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2.3 - C. Anita D/o Late Rohit Aged About 20 Years R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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3 - Makardhwaj S/o Ujal, Caste Sanwara, (Died) Through His Legal Representative R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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3.1 - A. Smt. Parvati W/o Late Makardhwaj, Aged About 35 Years R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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3.2 - B. Pupil, S/o Late Makardhwaj, Aged About 25 Years R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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3.3 - C. Parmeshwar, S/o Late Makardhawaj, Aged About 22 Years R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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4 - Satya S/o Jeevanchand, Aged About 40 Years Occupation Housewife, R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.)

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5 - Mayakumari D/o Diwanchand, Aged About 35 Years Panjabi OccupationHousewife, R/o Jerabharan, P. H. No. 42/52, Revenue Circle Sankra, Tahsil Pithora District Mahasamund (C.G.) …... (Plaintiffs)

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6 - State Of Chhattisgarh, Through Collector, Mahasamund, District Mahasamund Chhattisgarh.

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... Respondents

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For Appellant : Mr. Ajeet Kumar Yadav, Advocate. For Respondents No. 1 & 2a to 2c and 3a to 3c

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: Mr. Aditya Chopda, Advocate on behalf of Mr. Subhank Tiwari, Adv.

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For Respondent No. 6 : Mrs. Mukta Tripathi, Advocate.

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Hon'ble Mr. Justice Naresh Kumar. Chandravanshi

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Order On Board 17-02-2025

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1. This second appeal has been filed under Section 100 of Code of Civil Procedure, 1908 (henceforth ”CPC”) against the impugned order dated 28.1.2022 passed by First Upper District Judge, Mahasamund, District Mahasamund in Civil Appeal (unregistered), whereby an application under Section 5 of the Indian Limitation Act filed by appellants / defendants was rejected and consequently first appeal was also rejected.

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[For the sake of convenience, parties would be referred to as per their status shown in the plaint filed before the trial Court].

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2. Facts of the case, in nutshell, as projected by the plaintiff, are that the respondent No. 1 and original respondents No. 2 & 3/ plaintiffs had filed civil suit for declaration of their title, possession and permanent injunction against the appellants/defendants bearing Civil Suit No. 12-A/2019 (Firtu &

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others vs. Vishwajeet & others) , which was decreed by Civil Judge, Class-II, Pithoura, District Mahasamund vide judgment & decree dated 06.03.2018. Being aggrieved with the same, appellants/defendants preferred first appeal before First Upper District Judge, Mahasamund (C.G.) under Section 96 of the CPC alongwith application under Section 5 of the Indian Limitation Act on 20.06.2018 for condoning the delay of 107 days in filing the first appeal.

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3. The First Appellate Court, after hearing both the parties, vide impugned order dated 28.01.2022 passed in unregistered appeal, rejected the application for condonation of delay in filing the first appeal holding that no sufficient cause has been shown by the appellants/defendants for the said delay and consequently, the first appeal was also dismissed, which give rise to file instant second appeal questioning the same.

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4. This appeal has been admitted for hearing on the following substantial question of law :-

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“Whether the learned first Appellate Court was justified in dismissing the appeal holding it barred by limitation, whereas sufficient reason was assigned by the appellants ?”

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5. Learned counsel appearing for the appellants/defendants would submit that as per impugned order dated 28.01.2022 itself, delay in filing the first appeal is only about 107 days, thus, it cannot be said that it is an inordinate delay. It is further submitted that judgment & decree was passed by the trial Court on 06.03.2018, but since defendant No. 1 was ill and defendant No. 2 was old aged lady, they could not contact their counsel right in time and, as such, they were not known about passing of the judgment & decree by the trial Court. They came to know about passing of

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the judgment & decree dated 06.03.2018 for the first time on 16.5.2018, thereafter, they contacted their counsel and first appeal was filed on 20.06.2018 alongwith application for condonation of delay of 107 days in filing the first appeal. It is submitted that because of illness and old age deformities, the first appeal was not filed filed by the defendants within the stipulated period, rather the same was filed after delay of 107 days. He further submits that appellants/defendants wanted that the first appeal be decided on merits, therefore, delay occurred in filing the first appeal, which is bonafide, may be condoned and the first appellate Court may be directed to restore the first appeal to its original file and decide the same on merits in accordance with law.

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6. Per contra, learned counsel appearing for respondents No. 1 to 3/plaintiffs would submit that no document has been filed by the appellants/defendants to justify the delay occurred in filing the first appeal, therefore, impugned order does not call for any interference in the instant appeal, hence, the second appeal is liable to be dismissed.

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7. Counsel of the State would submit that State is formal party in the instant appeal.

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8. I have heard learned counsel appearing for the parties and perused the material available on record.

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9. The Supreme Court in N. Balakrishnan v. M. Krishnamurthy¹ 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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1 (1998) 7 SCC 123

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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 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 {AIR 1972 SC 749}.”

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10. In B.S. Sheshagiri Setty and others Versus State of Karnataka and others2 reported in (2016) 2 SCC 123, their Lordships of the Supreme Court has held that when what is at stake, is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. It is apt to reproduce the following observations:-

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“28. If a statute does not prescribe the time limit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. ”

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11. Having considered the facts, as has been stated hereinabove and further considering the principles of law laid down by Hon'ble Supreme Court in afore-cited cases, it is apparent that the delay occurred in filing the first appeal is said to be 107 days and the reasons is said to be illness of appellant No.1/defendant No.1 and old age deformities of appellant No. 2/defendant No. 2. Though no medical or any such document was filed by appellants/defendants to substantiate their contention, but the delay of 107 days is not found to be inordinate, as it is not found to be deliberate and malafide. Further dismissing first appeal on technical ground instead of deciding cases on merits cannot be held to be justified, as getting justice on merits in accordance with law is much more heavy right then getting benefit

2 (2016) 2 SCC 123

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of technical ground.

12. Having considered the aforesaid facts, particularly, considering the fact that delay of 107 days in filing the first appeal is not so inordinate, I feel inclined to allow the first appeal. Accordingly, substantial question of law is answered “negative” and in favour of appellants/defendants.

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13. Consequently, the instant second appeal is allowed subject to payment of cost of Rs.5,000/- payable to respondents No. 1 to 3/plaintiffs by the appellants/defendants, impugned order dated 28.01.2022 is set aside. Accordingly, application under Section 5 of the Limitation Act for condonation of delay in filing the first appeal is allowed and the delay of 107 days in filing the first appeal is condoned. First appellate Court is directed to restore the first appeal (unregistered ) to its original file for hearing and disposal on its own merits in accordance with law after receiving / submission of copy of this order alongwith receipt showing payment of cost of Rs.5,000/- to the respondents/plaintiffs.

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14. Counsel for the parties are directed to make present their respective parties before the first appellate Court i.e. Principal District Judge, Mahasamund on 4^th March, 2025.

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

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Sd/-

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(Naresh Kumar Chandravanshi) JUDGE

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AMIT KUMAR DUBEY Digitally signed byAMIT KUMAR DUBEYDate: 2025.02.2018:07:47 +0530

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Amit

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Vishwajeet v. Firatu

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Vishwajeet v. Firatu

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