) 1. Gode Oraon 2. Jitu Oraon ------ Both sons of late Dewda Oraon v. 1. Sumit Oraon 2. Amit Oraon Both sons of Late Gobardhan Oraon 3. Dhaneshwar
Case Details
Second Appeal No. 147 of 2017 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.147 of 2017 (Against the order dated 05.10.2016 passed by the learned Principal District Judge, Lohardaga in Civil Appeal No. 13 of 2016) 1. Gode Oraon 2. Jitu Oraon ------ Both sons of late Dewda Oraon, resident of village –Kaimo, P.O.+P.S.+District –Lohardaga (Jharkhand). .... .... …. Defendant/Appellant/Appellants Versus 1. Sumit Oraon 2. Amit Oraon Both sons of Late Gobardhan Oraon 3. Dhaneshwar Oraon 4. Aicho Oraon Both sons of Late Koma Oraon and All resident of Village –Kaimo, P.O.+P.S.+District –Lohardaga …. ...
Legal Reasoning
Plaintiff/Respondent/Respondents .... 5. Deputy Commissioner, Lohardaga, P.O.+P.S.+District –Lohardaga ... Performa Defendant/Performa Respondent/Performa Respondents .... …. For the Appellant ------
Legal Reasoning
: Mr. Arun Kumar, Advocate : Mr. Rajesh Kumar, Advocate For the Resp. Nos. 1 to 4 : Mr. Naresh Pd. Thakur, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 87(2) of Chota Nagpur Tenancy Act, 1908 against the order dated 05.10.2016 by which the learned Principal District Judge, Lohardaga has dismissed Civil Appeal No. 13 of 2016 which was filed after a delay of 9 years, 11 months and 19 days on the ground that the appellants being members of Scheduled Tribe were having no knowledge of the law of limitation for filing appeals and the learned Principal District Judge, Lohardaga was of the opinion that the appellants have failed to 1 Second Appeal No. 147 of 2017 show any sufficient cause for not preferring the appeal within time, within the meaning of Order XLI Rule 3A of the C.P.C. and did not condone the delay in filing the appeal and dismissed Civil Appeal No. 13 of 2016 being barred by limitation. 3 It is submitted by the learned counsel for the appellants, relying upon the Judgment of Hon’ble Supreme Court of India, in the case of Sesh Nath Singh & Another Vs. Baidyabati Sheoraphuli Co- operative Bank Limited & Another, reported in (2021) 7 SCC 313, para -51 of which reads as under:- “51. Section 5 of the Limitation Act provides that any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908, may be admitted after the prescribed period of limitation, if the appellant or the applicant satisfies the court, that he had sufficient cause for not preferring the appeal or making the application within such period. The Explanation in Section 5 of the Limitation Act clarifies that, the fact that the appellant or the applicant may have been misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period, may be sufficient cause within the meaning of this section.” As also the Judgment of a Division Bench of this Court, in the case of State of Jharkhand & Ors. Vs. Ashok Kumar Chokhani & Ors., reported in 2013 (2) JCR 402 (Jhr.), para -16 of which reads as under:- “16.Sub-Rule (2) of Order XLI Rule 3(A) provides that if the appeal is presented after the expiry of period of limitation and there is application for condonation of delay, then the Court can reject the application without issuing notice to the respondent obviously on the ground that no sufficient cause has been shown for the condonation of delay. It is virtually impossible to reject such application for condonation of delay when the delay is of a few days only and legal predicament is that the Court cannot accept the application after condonation of delay without notice to other party, consequently without calling other party in Court, the Court cannot dismiss the appeal on merit. Now it is well settled in view of the various decisions of the Courts, that the Court should be liberal in condoning the delay and legal 2 Second Appeal No. 147 of 2017 proposition requiring explanation for each day’s delay, stand overruled. In that fact situation of requirement of being liberal in condoning the delay, the Court had no option but to follow the provisions as provided under Sub-Rule 2 of Rule 3(A) of Order XLI which mandatorily requires that in case Court choses not to reject the application for condonation of delay without calling upon the other party, then it has no option but to give a notice of the application to the respondent for deciding the application for condonation of delay and that too, mandatorily before the appeal is proceeded/heard under Rule 11 or Rule 13 of Order XLI. The further serious consequence is of dragging a party in the Court because of Sub-Rule 2 of Rule 3(A) of Order XLI which prohibits the Court from dismissing the appeal even if Court looks into the merit of the appeal and finds no merit but simply because it has been calculatedly or deliberately filed after a delay of one, two or few days.” And submits that keeping in view that it is a settled principle of law that Courts should be liberal in condoning the delay and the requirement of explanation for each day’s delay, stands overruled, the learned court below ought not have rejected the application for condonation of delay under Order XLI Rule 3A of the Code of Civil Procedure before issue of notice to the respondents. Hence, it is submitted that the impugned order dated 05.10.2016 passed by the learned Principal District Judge, Lohardaga be set aside after formulating appropriate substantial question of law. 4 The learned counsel for the respondent nos. 1 to 4 defends the impugned order dated 05.10.2016, passed by the learned Principal District Judge, Lohardaga and submits that there is absolutely no cause let alone sufficient cause for the condonation of delay and the only ground that the appellants being the member of Scheduled Tribe were having no knowledge of the limitation required for filing the appeal; is by no stretch of imagination, can be said to be a sufficient cause. It is next submitted by the learned counsel for the respondent 3 Second Appeal No. 147 of 2017 nos. 1 to 4 that it is a settled principle of law that ignorance of law is no excuse and there is no exemption to the members of the Scheduled Tribes for the period of limitation set forth by the provisions of the Limitation Act, 1963 and there being absolutely no sufficient cause, the learned first appellate court had no option but to reject the same in limini and without notice to the respondent and the learned first appellate court considering the inordinate delay of 9 years, 11 months and 19 days has rightly rejected the prayer for condonation of delay made Under Rule 3A of the Order XLI of the Code of Civil Procedure. Hence, it is submitted that this second appeal being without any merit be dismissed. 5 Having heard the submissions made at the Bar and after going through the materials in the record, true it is, that it is a settled principle of law that a liberal view be taken in the matter of condonation of delay but such liberal view obviously do not means that the statutory requirement of showing sufficient cause for the delay as envisaged under Order XLI Rule 3A(1) of the Code of Civil Procedure, 1908 can be waived nor the said word ‘sufficient cause’ be obliterated from the statute. 6 Now coming to the facts of the case, the sole ground for condonation of inordinate delay of 9 years, 11 months and 19 days is that the appellants are the members of Scheduled Tribes, hence they had no knowledge about the law of limitation and in the considered opinion of this Court, ignorance of law of limitation even if the appellants are the members of the Scheduled Tribes is not a sufficient 4 Second Appeal No. 147 of 2017 cause for condoning the inordinate delay of 9 years, 11 months and 19 days in filing this appeal. Hence, this Court do not find any illegality in the impugned order passed by the learned first appellate court dated 05.10.2016 in Civil Appeal No. 13 of 2016, whereby and where under, the learned Principal District Judge, Lohardaga has dismissed the petition for condonation of delay in filing the appeal under Order XLI Rule 3A of the Code of Civil Procedure. After going through the materials in the record this court finds that there is absolutely no substantial question of law involved in this appeal. 7 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 8 Let a copy of this Judgment be sent to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated the 23rd August, 2023 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 5