Nafr High Court
Case Details
1 2025:CGHC:38362 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 395 of 2015 • Eknath S/o Dular Sai Aged About 66 Years R/o Village Charoda, P.S. And Tahsil Malkharoda, District- Janjgir-Champa, Chhattisgarh, Chhattisgarh versus ... Appellant. 1 (A) - Jeet Kunwar (B) Sunder Lal S/o Ganda Rai Aged About 43 Years R/o Village Pikaripar, P.S. And Tahsil Malkharoda, District- Janjgir-Champa, Chhattisgarh, District : Janjgir- Champa, Chhattisgarh. (C) Geeta Ram S/o Ganda Rai Aged About 40 Years R/o Village Pikaripar, P.S. And Tahsil Malkharoda, District- Janjgir-Champa, Chhattisgarh, District : Janjgir- Champa, Chhattisgarh (D) Aasha Ram S/o Ganda Rai Aged About 30 Years R/o Village Pikaripar, P.S. And Tahsil Malkharoda, District- Janjgir-Champa, Chhattisgarh, District : Janjgir- Champa, Chhattisgarh 2 Pitamber S/o Pujeri Aged About 65 Years R/o Village Pikaripar, P.S. And Tahsil Malkharoda, District- Janjgir-Champa, Chhattisgarh, District : Janjgir- Champa, Chhattisgarh 3 Rohit S/o Pujeri Aged About 35 Years R/o Village Pikaripar, P.S. And Tahsil Malkharoda, District- Janjgir-Champa, Chhattisgarh, District : Janjgir- Champa, Chhattisgarh 4 State Of Chhattisgarh, Through The Collector, Janjgir, District- Janjgir- Champa, Chhattisgrh, District : Janjgir-Champa, Chhattisgarh ... Respondents. 2 For Appellant For Respondent No.1. For State : : :
Legal Reasoning
Mr. Ishwar Jaiswal, Advocate. Mr. Parag Kotecha, Advocate Mr. Aman Tamboli, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 04-08-2025 1. The appellant/plaintiff has filed the instant Second Appeal under Section 100 of CPC against the judgment and decree dated 9-4-2015 passed by the First Additional District Judge, Sakti, District Janjgir Champa in Civil Appeal No 24-A/2015 (Annexure A/1) arising out of the judgment and decree dated 29-7-2013 passed in Civil Suit No 19-A of 2011 by learned Civil Judge, Class-2, Malklharoda, District Janjgir-Champa (CG) (Annexure A/2). 2. Learned First Appellate Court vide its order dated 9-4-2015 rejected the application filed under Section 5 of the Limitation and consequently dismissed the appeal at the threshold holding as it is barred by 38 days of limitation. 3. This appeal has been admitted on 12-5-2016 on the following substantial question of law:- “Whether the First Appellate Court had exercised its jurisdiction fairly and judiciously while dismissing the application seeking condonation of delay?” 4. Brief facts reflected from the record are that (A) The appellant/plaintiff filed the suit for declaration of title and possession of the suit property on the ground of adverse possession mainly contending that the defendants’ father namely Dular Sai has mortgaged the suit property ie., the land bearing Khasra No 195/8 area 1.20 acres situated at village Charoda, Patwari Halka No.5, Tahsil Malkharoda as mentioned in Schedule -A of the plaint on 19-12-1966 for value of Rs.1200/- and 3 possession has already been given and since then he is in peaceful possession of the suit property. (B) It is also case of the plaintiff that in view of mortgage deed, he has recorded his name in the revenue records in the year 1971 and for the last 45 years he is in peaceful possession of the suit property. ( C) The defendant has also moved an application before the Tahsildar, Malkharoda for recovery of possession which has been rejected on 30-6- 2012 and since then he is in possession of the property for the last 45 years, therefore, he has prayed for declaration of title and possession on the basis of adverse possession. 5. The defendants have filed the written statement denying the allegation made in the plaint mainly contending that no mortgage of suit property was done by the father of the defendants and description of the property and date of agreement have also been subsequently added by the plaintiff. In fact, the father of the defendant No.1 namely Pujeriram had purchased this suit property from defendant Dularsai on 10-5-1961 for sale consideration of Rs.1000/- through registered sale deed and the said land was recorded in the name of Pujeriram and after death of Pujeriram, defendants No. 1 to 3 are in possession of the suit property. 6. Learned trial Court on the basis of evidence and material on record and after appreciation of the fact has dismissed the suit. 7. Being aggrieved with the aforesaid impugned judgment and decree passed by the learned trial Court, the plaintiff has preferred the first appeal before the learned First Additional District Judge, Sakti, Dist. Janjgir Champa with delay of 38 days . The appellant has also filed an application under Section 5 of the Limitation Act before the First Appellate Court contending that the information regarding the status of the civil appeal has not been given to him by his counsel and when he contacted his counsel, then only he was made aware about the passing of judgment which has caused delay in preferring the appeal. It has also been contended that because of old-age, illness and due to non-communication from 4 his counsel, delay has been caused, thus he has payed for condonation of delay from 30-7-2013 to 4-10-2013. Learned First Appellate Court by its impugned order dated 9-4-2015 has dismissed the application for condonation of delay in preferring the appeal holding that no sufficient cause has been shown for delay in filing the appeal and consequently dismissed the first appeal. Being aggrieved with the said impugned order dated 9-4-2015 the appellant/plaintiff has filed this Second Appeal under Section 100 of CPC before this Court which has been admitted on the substantial question of law as stated above. 8. Learned counsel for the appellant/plaintiff would submit that it is not required for the appellant/plaintiff to explain delay of each day and the Court should be very liberal in considering the delay and condone if there is bona fide reason in preferring the appeal with slight delay, thus he would submit that the impugned order passed by the First Appellate Court suffers from perversity or illegality in holding that no sufficient cause has been shown in preferring the appeal under Section 96 of the CPC and would pray for allowing the appeal. In support of his arguments, he has referred to the judgment of Hon’ble Supreme Court in SLP (Civil) No(s)(C) 24443/2024 decided on 31.01.2025 wherein Hon'ble Supreme Court has held that a hyper-technical approach should not be taken by the Courts in condoning delay more particularly in order to balance the scales of justice and especially so when the socio-economic background of a large number of India's population who approach the doors of justice as litigants come from the rural areas. 9. On the other hand, learned counsel for respondent No.1 would submit that the First Appellate Court has rightly rejected the application filed under Section 5 of the Limitation Act as the plaintiff has not given any justifiable reason to condone the delay. He would further submit that the plaintiff has deliberately with mala fide intention filed this second appeal and no medical 5 document in support of affidavit has been filed and would pray for dismissal of the appeal. 10. I have heard learned counsel appearing for the parties and perused the records of both the courts below with utmost circumspection. 11. Record of the case would show that the appeal was preferred by the appellant before the First Appellate Court with delay of 38 days wherein he has also explained the delay with detailed reason and the said application was supported by the affidavit of the plaintiff, there is no rebuttal to factual foundation laid by the plaintiff for condoning the delay, still the application for condonation of delay as well as appeal have been dismissed on the count of limitation, which is nothing but an abuse of process of law and suffers from arbitrariness. 12. Considering the fact that there is delay of 38 days in filing the appeal, I am of the view that the substantive right of the appellant to file first appeal could not be allowed to be defeated on technical grounds by taking hyper technical view on limitation. The Courts should not normally take rigid, hyper technical view in condoning the delay, unless the reasons are so attributed or it is not bona fide or no sufficient cause has been explained for condoning the delay or any right which has been accrued to any party is adversely affected. Hon’ble Supreme Court in catena of decisions has held that only sufficient and bonafide reason for condonation has to be seen, therefore, the first appellate Court has committed illegality in not condoning the delay in filing the appeal, as such, the impugned judgment and decree passed by the appellate Court is liable to be set aside 13. The issue of condonation of delay in preferring the appeal has come up for consideration before the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 31248 of 2018 ( Pathapati Subba Reddy (died) by Lrs and others 6 vs. The Special Deputy Collector (LA) decided on 8-4-2024 wherein the Hon’ble Supreme Court has observed in para 16 as under. “16.. Generally, the courts have adopted a very liberal approach in construing the phrase ‘sufficient cause’ used in Section 5 of the Limitation Act in order to condone the delay to enable the courts to do substantial justice and to apply law in a meaningful manner which subserves the ends of justice. In Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Others reported .(1987) 2 SCC 107, this Court in advocating the liberal approach in condoning the delay for ‘sufficient cause’ held that ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to explain every day’s delay in filing the appeal; and since sometimes refusal to condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of ‘sufficient cause’ for not filing the appeal in time, is a condition precedent for exercising the discretionary power to condone the delay. The phrases ‘liberal approach’, ‘justice oriented approach’ and cause for the advancement of ‘substantial justice’ cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act. 14. Keeping in view the principles laid down in the above stated cases and if the facts of the instant case are examined, it is quite vivid that the plaintiff is contesting his suit very seriously before the trial Court wherein the suit was dismissed by the trial Court and thereafter, he preferred an appeal 7 under Section 96 of the CPC read with Order 41 Rule 1 & 2 of the CPC along with an application under Section 5 of the Limitation Act before the First Appellate Court wherein the First Appellate Court without considering the ground raised by the plaintiff in condonation of delay application has rejected the application under Section 5 of the Limitation Act as well as appeal under Section 96 of the CPC. It is neither deliberate nor out come of malafide action on the part of plaintiff and it is “sufficient cause” within the meaning of Section 5 of the Limitation Act. 15. Considering all the aspects of the matter, this Court is of the opinion that the First Appellate Court has committed illegality in rejecting the application under Section 5 of the Limitation Act and consequently dismissing the
Decision
appeal. Accordingly, the appeal is allowed. The order impugned dated 9-4- 2015 passed by the learned first appellate court is set-aside. The delay in filing the appeal is hereby condoned. The First Appeal (Eknath s/o. Shri Dular Sai vs. Ganda Raiand others) is restored to the file of First Additional District Judge, Sakti for hearing and disposal of appeal on merit in accordance with law as this Court has already condoned the delay of 38 days. 16. Considering the fact that the original suit itself was filed in the year 2011 and a period of almost 14 years has lapsed as of now, as such the learned first appellate court is directed to decide the appeal expeditiously in accordance with law after issuing notice to the defendants for their presence and after hearing all the parties concerned. 17. The appellant/plaintiff shall appear before the First Appellate Court, Sakti, District Janjgir-Champa on 29-10-2025. 18. A decree be drawn up accordingly. 8 Sd/- (Narendra Kumar Vyas) Judge Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.09.19 12:42:15 +0530