HIGH COURT OF CHHATTISGARH AT BILASPUR

Transcription

1 HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH : HON'BLE Mr. P. SAM KOSHY, J. SECOND APPEAL NO. 353 OF 2002 APPELLANT : Abhay Ram (Plaintiff) Versus RESPONDENTS : Mahant Rambali Das (Defendants) and another SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908 Present: Mr. R.K. Tiwari, Advocate, for the Appellant. Mr. Basant Dewangan, Advocate, for Respondent No.1. Mr. Akhil Agrawal, Panel Lawyer, for Respondent No.2-State. J U D G E M E N T (Passed on ) Heard on M.(C.) P. No.1454/ This is an application, under Section 5 of the Limitation Act, 1963, for condoning the delay in filing of the instant second appeal which is barred by limitation of 1689 days. 3. Brief facts leading to the instant second appeal are that the plaintiff (appellant herein) had filed a suit being Civil Suit No.88- A/1996 before the trial Court claiming declaration of title of the suit land and for permanent injunction restraining the defendants (respondents herein) from disturbing the plaintiff from possession over the suit land. The said civil suit was decreed by the trial Court in favour of the plaintiff. However, the first appeal i.e. Civil Appeal No.35-A/1997 preferred by defendant No.1 was allowed by the first appellate Court, vide its judgement and decree dated , setting aside the judgement and decree dated passed by the trial Court and dismissing the suit of the plaintiff. 4. The said judgement and decree dated passed in Civil Appeal No.35-A/1997 was challenged by the plaintiff in Second Appeal No.1028/1999. Since the said second appeal, which was filed in the year 1999, was not attached with the certified copy of the

2 -2- decree, the same was rejected by the High Court on However, the High Court had permitted the plaintiff to file a fresh appeal along with certified copy of the decree in accordance with law. 5. From the records, it is seen that though the High Court had rejected the said second appeal on , the plaintiff had applied for the fresh certified copy, as per his application filed on i.e. after about 15 months from the rejection of the said second appeal. Thereafter, the plaintiff continue to move application for obtaining certified copy of judgement and decree and, finally, the instant second appeal was filed on , which is barred by 1689 days. 6. From perusal of the application, under Section 5 of the Limitation Act, for condonation of delay in filing of the instant second appeal, it is found that the plaintiff has only explained the fact that initially when the first Second Appeal No.1028/1999 was preferred in the year 1999 against the judgement and decree dated , he could not attach the certified copy of the decree and, therefore, the High Court had rejected the said second appeal with liberty to file a fresh appeal in accordance with law. It was only thereafter that he had applied for the fresh certified copy of the decree and filed the present second appeal that too on However, in his entire application, he has not explained as to what prevented from filing the second appeal against the judgement and decree dated till i.e. for the first time when he filed the second appeal that too without certified copy of the decree. 7. From the records, it is also reflected that the said second appeal was rejected vide order dated and, even after , the plaintiff did not take appropriate step to obtain the certified copy of the judgement and decree immediately and it was only after about 15 months i.e. vide his application dated for the first time he had moved an application for

3 -3- getting the certified copy of the judgement and decree. For this 15 months' period also, the plaintiff has not explained any sufficient cause justifying the delay caused in moving appropriate application for obtaining certified copy of the judgement and decree. 8. Perusal of the application further reflects that no sufficient cause whatsoever has been shown explaining the delay of initial two years period as well as the subsequent 15 months' period after the High Court had rejected the first second appeal on technical grounds. 9. In the absence of any sufficient cause, the application under Section 5 of the Limitation Act cannot be entertained as a matter of routine, particularly, when the delay in filing of the instant second appeal is for a period of approximately 1700 days i.e. almost about 3 years time. 10. Recently, Hon'ble Supreme Court in the case of Basawaraj and another v. The Spl. Land Acquisition Officer, reported in 2013 AIR SCW 6510, has, in very categorical terms, after considering a series of judgements of Supreme Court on Section 5 of the Limitation Act, held as follows:- Where a case has been presented in the Court beyond limitation, the applicant has to explain the Court as to what was the sufficient cause which means an adequate and enough reason which prevented him to approach the Court within limitation. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature. Sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The applicant must satisfy the Court that he was prevented by any sufficient cause from prosecuting

4 -4- his case, and unless a satisfactory explanation is furnished, the Court should not allow the application of condonation of delay. 12. It is a settled legal position that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute show prescribes. The Court has no power to extend the period of limitation on equitable grounds. A result flowing from a statutory provision is never an evil. A Court has no power to ignore the provision to relieve what is considers a distress resulting from it operation. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means the law is hard but it is the law, stands attracted in such a situation. It has consistently been held that, inconvenience is not a decisive factor to be considered while interpreting a statute. 15. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be justified ground to condone the delay 11. In view of the above, since sufficient cause has not been explained by the appellant/plaintiff, the M.(C.) P. No.1454/2002 which is an application, under Section 5 of the Limitation Act, 1963, for condoning the delay in filing of the instant second appeal, is rejected. Consequently, the instant second appeal also fails and is hereby dismissed. No order as to costs. /sky/ J U D G E

5 -5- Head Note Sufficient cause - In case a party is found to be negligent or found to have not acted diligently or remained inactive, delay should not be condoned. By Order Steno to Hon'ble. Mr. P. Sam Koshy, J.