Panna Lal Sah v. Raghuwar Saran
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.5 of 2012 ====================================================== Panna Lal Sah .... .... Appellant Versus Raghuwar Saran .... .... Respondent ====================================================== Appearance : For the Appellant/s : Mr. Umesh Chandra Verma For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 12 24-07-2013 Heard learned Senior Counsel Mr. T.N. Maitin appearing on behalf of the appellant and the learned counsel Mr. Manindra Kumar appearing on behalf of the respondent under Order XLI Rule 11 of the Code of Civil Procedure. 2. This Second Appeal has been filed by the tenant- defendant against the judgment and decree dated 23.11.2011 passed by the learned District Judge, Bettiah (West Champaran) in Civil Appeal No.55 of 2011, whereby the lower appellate court has dismissed the appeal on the ground of limitation and thereby
Facts
affirmed the judgment and decree dated 13.08.2009 passed by the learned Subordinate Judge-IV, West Champaran in Title (Eviction) Suit No.191 of 2002. 3. The plaintiff-respondent filed the aforesaid Eviction Suit for eviction of the defendant on the ground of default. According to the plaintiff, the defendant is a tenant in the suit Patna High Court SA No.5 of 2012 (12) dt.24-07-2013 2 premises on monthly rent of Rs.7,000.00. He has not paid the rent from the month of September, 1999. The defendant filed written statement denying the ground of default. 4. On the basis of the materials available on record, the trial court decreed the plaintiff-respondent’s suit for eviction on the ground of default recording the finding that the defendant is a defaulter. The trial court also decreed for recovery of arrears of rent with interest. 5. The defendant against the said trial court judgment and decree filed Civil Revision No.533 of 2010. The said civil revision application was hopelessly barred by law of limitation. This Court by terms of order dated 01.07.2010 held that against the trial court judgment and decree the civil revision application is not maintainable at all and specifically directed the appellant to file title appeal before the District Judge. The appellant, thereafter instead of filing title appeal as directed in Civil Revision No.533 of 2010, filed First Appeal No.168 of 2010. 6. It appears that at the instance of the appellant, this First Appeal was listed under the heading ‘To be mentioned’ on 12.09.2011. The appellant prayed that the memo of appeal be returned to him for proper presentation in view of the Division Bench decision of this Court in 1994 (1) P.L.J.R. 369 Patna High Court SA No.5 of 2012 (12) dt.24-07-2013 3
Legal Reasoning
filed, that should be condoned. It is settled law that limitation is to be liberally considered by the Court but it does not mean that a party in the garb of liberal consideration of the limitation, be allowed to use the same as weapon of offence against the other side. 12. It may be remembered here that we are sitting in second appellate jurisdiction. It is settled law that the Hon’ble Supreme Court has many times held that it has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in section must be strictly fulfilled before a Second Appeal can be maintained and no Court has the power to add or to enlarge those grounds. The Second Appeal cannot be decided on merely equitable grounds. Patna High Court SA No.5 of 2012 (12) dt.24-07-2013 8 13. So far the submission of learned counsel that the trial court has decreed for recovery of arrears of amount or that the trial court could not have decreed is concerned, it has got no nexus with the ground for condoning the delay. The lower appellate court found that even the civil revision filed by the appellant was hopelessly barred by law of limitation and no explanation has been furnished for filing the civil revision after such a long period. 14. In view of my above discussions, I find that the question raised by learned counsel for the appellant is not a substantial question of law. Accordingly, this Second Appeal is dismissed at the admission stage itself. 15. The interim order of stay, if any, is vacated. (Mungeshwar Sahoo, J) Harish/-
Arguments
(Smt. Sumitra Devi Vs. Jahnvi Prasad Shahi) and other decisions referred to in order dated 12.09.2011. In the said order while directing the office to return the memo of appeal, it was observed that if limitation application is filed, the lower appellate court shall consider the bonafide prosecution of the First Appeal by the appellant. Thereafter the memo of appeal returned from this Court was registered as Civil Appeal No.55 of 2011. A limitation application was filed in the said Civil Appeal. Considering the above facts and submissions of learned counsel for the appellant, the lower appellate court by the impugned order dismissed the appeal holding that the appeal is barred by law of limitation and further that the way in which First Appeal was filed in the High Court in spite of direction to file the same in the District Court, does not appear to be a mistaken advice of a lawyer and, therefore, the lower appellate court held that no sufficient cause has been shown for condoning the delay. 7. The learned Senior Counsel Mr. T.N. Maitin appearing on behalf of the appellant submitted that everything has happened because of mistaken advice of the lawyer and it is always considered by the courts that mistaken advice of an advocate is sufficient cause and moreover for the mistake of an advocate, the client should not suffer. The lower appellate court Patna High Court SA No.5 of 2012 (12) dt.24-07-2013 4 without considering this aspect has dismissed the limitation application. Therefore, according to the learned counsel, for the ends of justice, the lower appellate court should have condoned the delay. 8. The learned counsel for the appellant further submitted that in the plaint, the plaintiff also prayed for recovery of arrears of rent from the month of September, 1999 but valued the suit of Rs.84,000.00 only. The lower appellate court has granted decree for arrears of rent and also according to the appellant if the arrears of rent are calculated, the value will be more than Rs.2 lacs. In such circumstances because of confusion, the First Appeal was filed before the High Court. 9. On the other hand, learned counsel appearing on behalf of the respondent submitted that the question raised by the learned counsel for the appellant is not at all a substantial question of law. According to the learned counsel, whether there is sufficient cause for condoning the delay or not is not a question of law. All the matters leading to filing of the Civil Appeal before the lower appellate court have been considered by the lower appellate court and the lower appellate court recorded the finding that the defendant-appellant has failed to show sufficient cause for condoning the delay and it does not appear to be a mistaken Patna High Court SA No.5 of 2012 (12) dt.24-07-2013 5 advice. Learned counsel for the respondent further submitted that a stay order has been passed by this Court by terms of order dated 15.02.2012, which was modified by terms of order dated 27.08.2012 and the appellant was directed to deposit the arrears of rent as well as current rent but since the month of September, 1999 till today the appellant has not at all paid a single farthing. In the execution case also the appellant has not appeared and, therefore, the intention of the appellant cannot be said to be bonafide and on the ground of wrong advice of an advocate, the delay cannot be condoned and, therefore, the lower appellate court has rightly not condoned the delay. 10. It appears that on 12.09.2011, on the prayer of the appellant, the memo of appeal was directed to be returned to the appellant for its proper presentation. It was submitted that because of confusion the First Appeal was filed before the High Court. It may be mentioned here that at that time the fact of filing of civil revision earlier to the First Appeal and the order passed by this Court on 01.07.2010 in Civil Revision No.533 of 2010 was not brought to the notice of this Court otherwise the observation that the appellant was prosecuting the First Appeal as bonafide would not have been observed. So far the observation is concerned, whether it is bonafide or not bonafide is the subjective Patna High Court SA No.5 of 2012 (12) dt.24-07-2013 6 satisfaction of the Court concerned before whom the limitation application was filed. It appears that in Civil Revision No.533 of 2010 this Court specifically directed the appellant to prefer an appeal before the District Judge but in spite of the said direction the defendant did not file the appeal before the lower appellate court rather he filed the First Appeal before the High Court. The High Court never directed the appellant to get the memo of appeal returned. The appellant himself got the First Appeal listed under the heading ‘To be mentioned’ and got the memo of appeal returned with this observation and, in my opinion, it appears that this observation which he obtained has been obtained by suppressing the material facts before the Court i.e. regarding passing of the orders earlier in civil revision application. It further appears that the advocate himself pointed out the Division Bench decision before this Court and, therefore, a prayer has been made for return of the memo of appeal for proper presentation. Can it be said that the learned counsel for the appellant, who filed the appeal, had no knowledge about the law, which has been laid down by the Division Bench? In my opinion, the ground that by wrong advice the appeal was filed before this Court, is not acceptable. Further, the lower appellate court after considering all facts and circumstances recorded the finding that the approach of Patna High Court SA No.5 of 2012 (12) dt.24-07-2013 7 the appellant is not bonafide. In such circumstances, for doing justice, the limitation cannot be condoned and the lower appellate court has rightly not condoned the delay. 11. So far the submission of learned counsel for the appellant that generally the limitation is condoned by the Court is concerned, it may be mentioned here that there is no straightjacket formula that in every case whenever limitation application is