Shrimati Ram Rasiya Kuer @ Ram Rasia Devi v. Nand Kishore Pd. & Ors.

The second appeal has been filed by the defendant appellant appellant against the Judgment and Order dated 22nd February, 2012 passed by the learned District Judge, Bhojpur at Ara in title appeal No.14 of 2012 whereby the lower appellate Court dismissed the appeal consequentially after dismissing the limitation application.

3. The said appeal was filed by the defendant against the final decree sealed and signed on 1st July, 2010. Because there was delay in filing the second appeal, a separate limitation application was filed. By terms of Order dated 22.2.2012, the District Judge found hat there is delay of about 565 days and no explanation for delay has been given by the appellant. The application has been filed for condoning the delay on the ground that the husband of the appellant died on 22.09.2009. No medical report in support of the contention that the appellant was ill was filed. Accordingly, the limitation application was rejected and the 2 Patna High Court SA No.243 of 2012 (7) dt.11-09-2013 title appeal was dismissed at the admission stage itself.

4. The learned counsel for the appellant submitted that the appellant is old lady and had no knowledge about the final decree proceeding in the trial Court. The appellant has explained the delay in the limitation application. At that time, the appellant had no certificate, therefore, in this second appeal, the certificate had been produced by supplementary affidavit.

5. The learned counsel submitted that in such view of the matter the Court below should have counted the period of limitation from the date of the knowledge of the final decree but the lower appellate Court wrongly dismissed the limitation application counting the limitation from the date of final decree.

6. From perusal of the record of the Second Appeal, it appears that the order by which the Pleader Commission’s report was confirmed has not been filed. The learned counsel submitted that in fact the appellant had no knowledge, therefore, she had not filed any objection to the Pleader Commissioner’s report. By way of supplementary affidavit, the Pleader Commissioner’s report has been filed.

7. The learned counsel admitted that the appellant never filed any objection to the Pleader Commissioner’s report. It further appears that earlier the Pleader Commissioner submitted a report and final decree was prepared. Against the same, title appeal No.46 of 1996 was filed. The said title appeal was allowed and the matter was remanded to the trial Court for fresh appointment of Pleader Commissioner. Thereafter, the trial Court again appointed 3 Patna High Court SA No.243 of 2012 (7) dt.11-09-2013 Pleader Commissioner who submitted the report and the report was confirmed.

8. So far the submission of the learned counsel for the appellant that the period of limitation should have been counted from the date of knowledge of the final decree is concerned, it may be mentioned here that Article 116 of the Limitation Act provides that the appeal shall be filed within 30 days from the date of the Decree or order. Therefore, I find no substance in the submission of the learned counsel for the appellant. The appellant was required to give explanation to the conscience of the Court regarding the delay.

9. In the case of Balwant Singh Vs. Jagdish Singh & Ors. 2010 (8) SCC 685, the Hon’ble Supreme Court at paragraph 32, 35 has held as follows :- “32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.

35. The expression „sufficient cause‟ implies the presence of legal and adequate reasons. The word „sufficient‟ means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when one, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.”

10. In the case of Pundlik Jalam Patil (Dead) by Lrs. Vs. Executive Engineer, Jalgaon Medium Project & Anr., 2008 4 Patna High Court SA No.243 of 2012 (7) dt.11-09-2013 (17) SCC 448, the Hon’ble Supreme Court has held that it is true that the power to condone the delay rests with the Court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay and ordinarily the superior Court may not interfere with such discretion, even if some error is to be found in the discretion so exercised by the Court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order became vulnerable and susceptible for its correction by the superior Court.

11. In the present case, admittedly, only statements have been made by the appellant in the limitation application before the lower appellate Court that the appellant was ill. No supporting documentary evidences were produced. So far the death of the appellant husband is concerned, he died in the year 2009. In view of the above facts, so far the question as to whether there was sufficient cause for condoning the delay or there was no sufficient cause for condoning the delay is concerned, it is a pure question of fact and it is the discretion of the Court where the application was filed.

12. In view of the above facts, I find no substantial question of law involved in the present second appeal. Accordingly, this second appeal is dismissed at the admission stage itself. Sanjeev/- (Mungeshwar Sahoo, J)