Petitioner challenged the First Appellate Court's order condoning a 461-day delay in filing appeal against a decree. Relying on Apex Court principles, the High Court held discretion was properly exercised with costs imposed and dismissed the petition under Article 227.
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2024:HHC:8467
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.382 of 2024 Decided on: 12th September, 2024
------------------------------------------------------------------------------------- Pyare Chand …..Petitioner
Versus
Tara Chand and others
.....Respondents
Coram
Ms. Justice Jyotsna Rewal Dua
Whether approved for reporting?
For the Petitioner: Mr. Ajay Kumar Sharma, Advocate vice Mr. Peeyush Verma, Advocate. For the Respondents: Mr. K.D. Sood, Senior Advocate with Mr. Vivek Thakur, Advocate.
Jyotsna Rewal Dua, Judge
Petitioner was the plaintiff before the learned Trial Court. He had instituted a civil suit for permanent prohibitory injunction against the respondents seeking to restrain them from interfering with his ownership and possession over the suit land. The suit was decreed by the learned Trial Court on 30.09.2021.
2. The respondents filed an appeal before the learned First Appellate Court. The appeal was barred by 461 days. An application under Section 5 of the Limitation
Whether reporters of print and electronic media may be allowed to see the order? Yes
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Act read with Order 43 Rule 3-A of the Civil Procedure Code (CPC) was moved by the respondents seeking condonation of delay in filing the appeal. The application was allowed by the learned First Appellate Court on 03.06.2024. Petitioner feels aggrieved against this order and has invoked the jurisdiction of this Court under Article 227 of the Constitution of India.
3. Learned counsel for the petitioner submits that no cogent reasons were given by the respondents for condoning the delay in institution of the appeal. Therefore, the application moved by the respondents under Section 5 of the Limitation Act ought to have been dismissed.
Learned Senior Counsel for the respondents defended the impugned order. The respondents in their reply filed to the petition have submitted that they were not present when the judgment and decree was announced. They were not aware about the exact decision rendered in the case. It was only when the execution petition was filed by the petitioner and they received summons thereof that they became aware of the passing of judgment and decree against them on 30.09.2021. Immediately thereafter, they took steps for instituting the appeal. It has also been
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submitted that the respondents have good case on merits in their first appeal. That the petitioner in his suit had not even claimed the relief of possession of the abadi by demolition of structure constructed by the respondents, which relief had been granted to him. Even the sale deed, Ext. PW-2/A, had not been proved. The matter had been compromised between the parties previously in terms of compromise deed dated 21.05.2012 (Ext. PW-1/D). These are some of the aspects, which escaped notice of the learned Trial Court while decreeing the suit in favour of the petitioner.
4. In Pathapati Subba Reddy (Died) by L.Rs. and Others vs. Special Deputy Collector (LA)1 , following
principles of law of limitation were culled out by the Hon’ble Apex Court:-
“26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
1 2023 SCC OnLine SC 513
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(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”
Hon’ble Apex Court in the above-extracted principles has also held that in order to advance substantial justice, though liberal, justice-oriented approach and cause of substantial justice is required to be kept in mind, however, the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act. Section 3 has to be construed in a strict sense, wherein Section 5 has to be construed liberally.
In the instant case, the respondents had filed
the appeal against the judgment and decree passed by the learned Trial Court in favour of the petitioner. The First
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Appellate Court is the last Court of facts available to the respondents. For the lapses on the part of the respondents, learned First Appellate Court has imposed costs of Rs.10,000/- upon them and exercised the discretion vested in it in accordance with law in condoning the delay in institution of the appeal by the respondents. In the given facts of the case, justice-oriented and liberal approach was rightfully exercised by the learned First Appellate Court. Exercise of discretion by the learned First Appellate Court under the impugned order in condoning the delay cannot be said to be suffering from any illegality or material irregularity, so as to warrant interference in exercise of powers under Article 227 of the Constitution of India.
5. For the foregoing reasons, no interference is called for in the impugned order dated 03.06.2024 passed by the learned First Appellate Court. The instant petition, therefore, lacks merit and is accordingly dismissed alongwith pending miscellaneous application(s), if any.
Jyotsna Rewal Dua Judge
September 12, 2024 Mukesh
1 issue framed by the court
Whether the First Appellate Court erred in condoning a 461-day delay in filing an appeal under Section 5 of the Limitation Act.
Colour shows how this judgement treated each authority
Pathapati Subba Reddy (Died) by L.Rs. and Others vs. Special Deputy Collector (LA)Relied on¶4
2023 SCC OnLine SC 513 · Who else cites this
4 provisions across 3 enactments
Pyare Chand
Tara Chand and others
Jyotsna Rewal Dua
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
