Dhaniram Verma v. Shri Digambar Jain Mandir Panchayat Trust Religious Institution

HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 107/2009 APPELLANT DEFENDANT RESPONDENTS PLAINTIFFS VERSUS 1). 2) 3) 4) 5) 6) 7) Dhaniram Verma aged about 59 years Shri Chunkailal Verma, R/o S/o Malviya Road, Raipur (C.G.). S/o Jain Chand Shri Digambar Jain Mandir Panchayat Trust Religious Institution, Registered under M.P. Public Trust Act 1951 Malviya Road, Raipur through Shri Late Suresh Laxmichand Jain, aged about 69 years, Raipur (C.G.). Shri Laksmichand aged about 67 years S/o Shri Sudchand Ji, Shri Mahendra Kumar Jain S/o Late Shri Sevaram Ji Jain C/o Narendra Bangles Stores, Banjari Road, Raipur (C.G.). Shri Mahaveer Prasad aged about 55 years, S/o Shri Ajitmal Ji Bakliwal, Shri Manoj Kumar Jain aged about 53 years, S/o Shri Dammolal Ji Jain, Shri Sharad Kevalchand Jain, Colony, Tagore Nagar, Raipur (C.G.). Shri Sureshchand Jain aged about 56 years S/o Shri Tarachand Ji Jain, R-2, R-4, R-5, All Resident o Malviya Road Raipur, Town Tahsil and Dist. Raipur (C.G.). Jain S/o Late Shri r/o 135/D M.R. MEMORANDUM OF APPEAL UNDER SECTION 100 OF THE C.P.C. (SB :Hon>ble Mr. T.P.Sharma, J.) Present : Shri Sachin Singh Rajput, Advocate for the appellant. Shri S. Imtiaz Ali, Advocate for the respondent N0. 1. JUDGEMENT (Passed on 20/7/2009)

1. This second appeal under Section 100 of the Civil Procedure Code, 198 (in short the Code) has been preferred against the judgment and decree dated 30/3/2007 passed by the 9th Additional District Judge, Raipur in civil appeal No. 17-A/2004. -f. z- Heard on I.A. No. 01, application under section 5 ofthe limitation act, 1963 for condonation of delay in filing the appeal. This appeal has been preferred after 615 days of its limitation. According to the case of the appellant he was prevented from filing the appeal within limitation as he was in private job and was not having sufficient time to look after the court case therefore, he had requested Shri Shukhlal Shrivastava and another co-tenant against whom suit for eviction was also pending to take appropriate step Shri Shrivastava had not taken any step for filing the appeal. In the February- 2009 when he received the notice from Court then he contacted with his counsel and finally preferred the appeal after lapse of 615 days of its limitation. Learned counsel for the appellant argued that although appellant has filed appeal after period of limitation but length of delay is not a matter the acceptability of the explanation for the delay is only criterian. Learned counsel for the appellant placed reliance in the matter of N. Balakrishnan v. M. Krishnaniurthy1 in which it has been held by the Apex Court that satisfactory explanation is required.

5. Learned counsel for the appellant further placed reliance in the matter of State v. Y Moideen Kunhi (Dead) By Lrs. And Others2 in which it has been held by the Apex court that explanation sufficient cause accurate in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice. After taking into consideration the important question of law involve delay was condoned subject to the cost and Rs. 10 Lakhs. 1998 SAR (Civil) 739 2 2009 INDLAW SC. 576 ^fS^^^ /.^. f ^ Learned counsel for the respondent No. 1 has opposed the ground for explanation of the delay in filing the appeal and alleged that appellant was not busy in any private job he has never entrusted Shri Shrivastava for preferring the appeal. Learned counsel the respondent No. 1 has submitted that appellant has not explained the delay, placed reliance in the matter of Ram Kali Devi v. Manager Punfab National Bank, Shamshabad:Lin which it has been held by the Apex court that at time of consideration the explanation for condonation of delay merit of the case cannot be looked at with out condoning delay.

8. For showing sufficient cause parties are required to explain the delay of each day for filing the appeal but courts are required to be liberal in accepting the explanation with a view to cause substantial justice. As held in case of N. Balakrishnan (supra) the long delay may be condoned after showing sufficient cause the rules of the limitation not meant to destroy the rights of the parties they are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly Para -13 reads as follows:-

13. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their caused by reason of legal injury. Law of limitation fixes a life -span for such legal wasted time would never revisit During efflux of time newer cause would sprout So a life span must be fbced for each remedy. Unending period for lunching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis lithium (it is for the .1997 STPL (LE) 24634 SC \ etemal welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly/. The idea is that every legal remedy must be kept alive for a legislatively fixed period oftime.

9. While dealing with the sufficient cause in case of State v. Y Moideen Kunhi (Dead) By Lrs. (supra) Apex Court has held that it requires liberal construction so as to advance substantialjustice.

10. Present appellant was required to explain the delay in filing the appeal but he has not filed any material to show his busyness in private job and entrustment to Shri Shrivastava filing the appeal even present appellant has not filed any affidavit of the alleged Shri Shrivastava.

11. In absence of any cause much less then sufficient cause for filing the appeal after the period of limitation it is difficult to hold that appellant was prevented for preferring the appeal within time and was having any cause much less then sufficient cause for filing the appeal after the period of limitation.

12. Consequently, in absence of any explanation for delay in filing the appeal I.A. N0. 1 for condonation of delay in filing the appeal is liable to be dismissed and is hereby dismissed. As a result of present appeal is dismissed as time barred. No order as to costs. Sd/- T.P. Sharma Judge -f'r