Dismissed

Smt. Kunti Diwedi v. Ghewarchand

Rajasthan HC18 Sept 2023CSA/3/2016

Case brief

AI extract

What is this about?

In an appeal against a Second Appeal admitting dismissal due to limitation, the High Court held that the appellant failed to prove sufficient cause for a 650-day delay, rejecting illness and counsel negligence as valid grounds, and consequently dismissed both the limitation application and the appeal.

What did the court decide?

Application for condonation of delay dismissed; Civil Second Appeal dismissed; Stay petition dismissed.

Smt. Kunti Diwedi Vs Ghewarchand — Civil Procedure and Limitation | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 3/2016

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Smt. Kunti Diwedi W/o Lt. Col. V.N. Dwivedi, aged 78 years, resident of Adarsh Colony, Bikaner (Rajasthan).

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----Appellant

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Versus

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Ghewarchand S/o Shri Narsinghdas Prajapat, by caste Prajapat, resident of Adarsh Colony, Biakner.

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----Respondent

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For Appellant(s)	: Mr.	Narendra Thanvi
	Mr.	Mahendra Thanvi
For Respondent(s)	: Mr.	Surendra Thanvi for
	Mr.	Sanjeet Purohit

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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18/09/2023

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The instant second appeal has been preferred against the judgment and decree dated 22.08.2014 passed by the Additional District Judge No.2, Bikaner in Civil Appeal No.27/2010, whereby the judgment and decree dated 27.09.2010 passed by the Additional Civil Judge (Senior Division) No.2, Bikaner in Civil Suit No.81/2009 has been affirmed. The learned trial Court, vide judgment and decree dated 27.09.2010, decreed the suit of the plaintiff for eviction and arrears of rent.

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Brief facts of the case are as under :

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(i) On 04.07.1994, plaintiff-respondent filed a suit for eviction and arrears of rent against defendant-appellant. It was averred in the plaint that plot Nos.6 and 7 of Adarsh Colony, Bikaner were in the ownership of Smt. Sunita and Late Smt. Vandana on which

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they had constructed their respective houses. After the death of Smt. Vandana, the said plot was in ownership and possession of plaintiff Ghewar Chand who gave it on rent to the defendant @ Rs.1000/- per month for opening a crèche. Defendant deposited the rent in the bank account of plaintiff till May 1993 but thereafter defaulted in payment of 13 months’ rent i.e., Rs.13,000. Further, she constructed a wall in the garage blocking the main gate; demolished the wall in between the said house and the adjacent house of Smt. Sunita and constructed a chabutra therein and started running a school in the premises instead of opening a crèche. It was further averred that the plaintiff was in bonafide need of the premise for residence of his family which could not be fulfilled by partial eviction of the premise and that the appellant could shift to some other premise for running her school. Hence, the present suit was filed with a prayer for eviction and recovery of arrears of rent.

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(ii) The defendant, vide her written statement, denied the averments made in the plaint and submitted that in the year 1989 when she was in search of a property to be purchased for running school, the plaintiff, who was in illegal possession of the land of Urban Improvement Trust, rented out the premises to her, posing himself to be the landlord. Subsequently, construction over the land in question was demolished by the UIT and at that point of time, plaintiff and his agent Baggaram offered to sell debris ( tamirat malba ) over the land to appellant for Rs.45,000/-. Since appellant could not pay the said amount in lumpsum, it was agreed to be paid in monthly instalments of Rs.1,000/- per month. An oral agreement, on the above terms, was entered into and

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possession was transferred to the defendant. It was also averred in the written statement that she deposited first three instalments through cash and thereafter via cheque. After full and final payment, plaintiff no longer remained to be the landlord of the premises. Subsequently, vide order dated 12.05.1993, UIT allotted the said land to her for running a school and rejected the application preferred by the plaintiff for regularization of possession over the land. However, a writ petition SB Civil Writ Petition No.2534/93 was preferred by plaintiff Ghewar Chand and Baggaram against the order dated 02.05.1993 wherein an interim order was passed and hence no final proceedings could be executed by the UIT.

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On basis of the pleadings as made, the learned trial Court framed the following 8 issues in the matter:

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1.आया ्ቚति�वाति�या ने मई-1993 के बा� का तिकराया अ�ा नहीं कर तिकराया अ�ायगी में तिवति�क ति�्ቅ म तिकया है? 2.आया ति�वा�ी ने वा�-प्ቔ के पैरा सं. 6 (2) में उ्ቤे खि � �रीके (रीति�) से वा�्ቇ्ቜ परिरसर में सारभू� परिरव�&न तिकया है? 3.आया ति�वा�ी ने ति''ुगृह के स्थान पर परिरसर में तिव्ቕालय 'ुरू कर ति�या है?

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4.आया वा�्ቇ्ቜ परिरसर की वा�ी को यं के तिलए व यं के परिरवार के तिलए उति2� एवं स्ቓ ावनापू्ቓ& आव्ብ क�ा है? 5.आया �ुलना्ቒ क कति7नाई का तिब्቎�ु वा�ी के प्ቌ में है?

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6.आया परिरसर की आंति'क रिरखि: संभव नहीं है?

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7.आया वा�ी व ्ቚति�वाति�या के म्ቖ मकान मातिलक-तिकराये�ार के संबं� है?

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8. अनु�ोष?

Vide judgment and decree dated 27.09.2010, the learned trial Court decreed the plaintiff’s suit for eviction and the appeal as preferred by the defendant was dismissed by the first appellate Court against which the present Second Appeal has been preferred.

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The present second appeal has been preferred with a delay of 650 days. An application under Section 5 of the Limitation Act has been filed for condonation of delay in filing the appeal. The application under Section 5 of the Limitation Act as filed is reproduced as under :

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“The counsel for the applicant/appellant most humbly and respectfully submits as follows :

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1. That the applicant has filed a Civil Second Appeal against the the judgment and decree dated 22.08.2014 passed by the learned Additional District Judge No.2, Bikaner in Civil Appeal No.27/2010 titled as Kunti V/s. Ghewarchand and the judgment and decree dated 27.09.2010 passed by the learned Civil Judge (Sr.Div.), No.2, Bikaner, in regular civil suit No.81/2009 titled as Ghewarchand V/s. Smt. Kuntiand the same is based on very sound and cogent grounds. The contents mentioned in the S.B. Civil Second Appeal may kindly be treated as part and parcel of this application for passing an appropriate order or direction in this matter.

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2. That the S.B. Civil Misc. has filed by the appellant is suffering with the delay of 435 days as time barred. The delay is causing bonafide as the appellant is an old widow lady who is suffering with

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multiple ailments and it was very difficult to her to travel in her ailment condition.

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3. That besides this, being an old ailed lady she is not so legal literate to understand the technalities of the legal process and she was in such an impression that the appeal before this Hon’ble Court can be filed at any stage, but when she came to know about the process, but as soon as the applicant came to know about the process, then without causing any delay she approached to his counsel for filing this appeal after making the arrangement of necessary documents and other expenses, thereafter this application was filed by the counsel of applicant with in the time limit.

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4. That the reason of delay in the filing of S.B. Civil Second Appeal is absolute bonafide and there is sufficient reason for the condonation of the delay. 5. That the other ground would be urged at the time of arguments with prior permission of the Hon’ble Court.

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Therefore, it is prayed by the humble applicant that delay of delay of 435 days in filing the S.B. Civil Second Appeal may kindly be condoned and this application may kindly be accepted for admission in the interest of justice.

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Any other relief which this Hon’ble court deems fit in favour of the appellant/applicant may kindly be passed.”

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The arguments on the application were heard on 01.06.2023 on which date the Court was observed that no plausible or sufficient ground has been given in the application so as to condone the delay. However, time was sought by counsel for the appellant to place on record the documents to substantiate the fact that the appellant was suffering from serious ailment and

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therefore could not prefer the appeal in time. In pursuance to order dated 01.06.2023, an additional affidavit of the appellant has been filed annexing along with certain prescription slips qua the medical treatment and a discharge ticket of Haldiram Moolchand Hospital for a period from 10.04.2012 to 11.04.2012 and further from 27.08.2014 to 30.08.2014 of Sardar Patel Medical College at Bikaner.

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In the additional affidavit, it has been submitted that the earlier counsel engaged by the appellant did not take care of the appeal and she was regularly been informed by the counsel that her appeal is pending consideration. When the possession of the property in question was taken in the execution proceedings, she contacted her counsel and she was informed that soon effective orders would be passed and she, in bonafide belief, did not take any further steps. It is only on her engaging a new counsel that she came to know about non-listing of the appeal for a period of 7 years.

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A counter to the additional affidavit filed by the appellant has been filed by the respondents wherein it has been submitted that the facts as stated by the appellant are totally incorrect. Rather, the appellant pursued the execution proceedings as initiated by the decree holder and it is only after the possession of the property been taken over by the decree holder in the execution proceedings in the month of April 2015 that the present appeal was filed in the month of November 2015. All the prescription slips qua the treatment of the appellant pertain to year 2012 and even the last discharge ticket as annexed with the additional affidavit pertain to the period from 27.08.2014 to 30.08.2014. The

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judgment and decree was passed by the First Appellate Court on 22.08.2014 and even the possession of the property was taken over in April 2015. No reason for delay for the period from September 2014 to November 2015 has been given by the appellant. It has also been submitted that ignorance of law is no excuse and the flimsy ground as raised by the appellant under Section 5 of the Limitation Act cannot be termed to be plausible.

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Heard learned counsels and perused the application under Section 5 of the Limitation Act as well as the documents annexed along with the same. 9. As observed above, the application under Section 5 of the Limitation Act did not give any reason for delay in filing the present appeal which can be termed to be sufficient, logical or plausible. The only reason given in the application was that she was under an impression that appeal before this Court can be filed at any stage.

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So far as the said ground of the appellant being not aware of legal requirement is concerned, reliance on the Hon’ble Apex Court judgment in Swadeshi Cotton Mills Co. Ltd. vs Government of UP and Ors., (1975) 4 SCC 378 is apt wherein the Hon’ble Apex Court held as under :

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“ 3…Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. Ignorance of law is not an excuse for not taking appropriate steps within limitation. Therefore, the arguments that the appellant did not know the true legal position is not one that can be accepted in law .”

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So far as the documents qua treatment of the appellant are concerned, all of them except one pertain to the year 2012. Admittedly, the decree by the First Appellate Court was passed on 22.08.2014. It is also admitted on record that the defendant pursued the execution proceedings as initiated by the decree holder. The possession in the said proceedings was taken over in April 2015 and even till that date, the appellant did not choose to prefer any appeal against the judgment and decree dated 22.08.2014. The present appeal has been preferred after 7 months of the possession having been taken over. Even if it is assumed that the appellant was suffering from ailment in the month of August 2014, no reason for delay for the period of September 2014 to August 2015 and further, for April 2015 to November 2015 has been given. So far as the discharge ticket pertaining to the period 27.08.2014 to 30.08.2014 is concerned, the same is also not supported by any prescription or details of the hospitalisation of the appellant.

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So far as the averment of the appellant regarding the counsel not pursuing the matter diligently is concerned, the same can be of no consequence so far as the delay in filing the present appeal is concerned as it is not the case of the appellant that despite instructions, the counsel did not file the appeal within the prescribed time. Even otherwise, while deciding the application under Section 5 of the Limitation Act, this Court would not be concerned with the time spent after the appeal having been filed. This Court has to look into the delay caused prior to filing of the appeal which in the present case is inordinate being 650 days. Further, in Estate Officer, Haryana Urban Development

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Authority and Another Vs. Gopi Chand Atreja, (2019) 4 SCC 612 , the Hon’ble Apex Court held as under :

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“ 18. If, according to the Appellants-HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.”

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So far as the judgments as relied upon by learned counsel for the appellant are concerned, there is no dispute about the ratio as laid down in Ummer Vs. Pottengal Subida and Ors., (2018) 15 SCC 127, that a liberal view should be taken while dealing with the matters relating to condonation of delay and the applicant praying for condonation of delay is not required to explain delay of each day. But then, in the said case, the facts as alleged in the application under Section 5 of the Limitation Act were duly proved by documents. It was also proved therein that the appellant remained hospitalized for a long time qua his heart disease as well as dengue fever. The same is not the position in the present matter. Herein, the appellant, after the impugned judgment and decree having been passed on 22.08.2014 participated/pursued the execution proceedings initiated against her and even the possession of the disputed premise was taken in the said execution proceedings in the month of April 2015. The present appeal has been filed in the month of November 2015, even after 7 months of the possession having been taken over. Even if it is accepted that the appellant was hospitalized for the period from 17.08.2014 to 30.08.2014 and was not well, no reason for the

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delay from April 2015 to November 2015 has been given which can be termed to be plausible or sufficient.

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In view of above observations and in view of the fact that the possession of the disputed premise has already been taken over way back in month of April 2015, this Court does not find any ground which can be termed sufficient to condone the inordinate delay of 650 days in filing the present appeal. The application under Section 5 of the Limitation Act is therefore, dismissed and as a consequence thereof, the appeal also stands dismissed .

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The stay petition as well as the pending applications, if any, also stand dismissed.

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(REKHA BORANA),J

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Vij/-

Smt. Kunti Diwedi v. Ghewarchand

Case brief

What is this about?

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Smt. Kunti Diwedi v. Ghewarchand

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