Manmohan Kumar, aged about 68 years, son of Late Sant Lal Saw, resident of v. Manoj Kumar Sah, son of Late Sant Lal Saw, resident of Spectrum Computer, Naya
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.66 of 2021 ------ Manmohan Kumar, aged about 68 years, son of Late Sant Lal Saw, resident of Spectrum Computer, Naya Bazar, Jugsalai, P.O. & P.S. – Jugsalai, Town –Jamshedpur, District –Singhbhum East. .... .... …. Defendant/Appellant/Appellant Versus Manoj Kumar Sah, son of Late Sant Lal Saw, resident of Spectrum Computer, Naya Bazar, Jugsalai, P.O. & P.S. –Jugsalai, Town – Jamshedpur, District –Singhbhum East. …. .... …. Plaintiff/Respondent/Respondent ------ For the Appellant : Mr. Rahul Kumar Gupta, Advocate : Mr. Parth S.A. Swaroop Pati, Advocate ------
Legal Reasoning
PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellant. 2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the order dated 22.02.2021 passed by the learned Principal District Judge, Jamshedpur in Civil Appeal No.93 of 2020 whereby and where under, the learned Principal District Judge, Jamshedpur dismissed Civil Appeal No. 93 of 2020 being barred by limitation. 3. The brief fact of the case is that the respondent-plaintiff filed Title Suit No. 41 of 2013 in the court of Civil Judge (Junior Division), Jamshedpur for eviction of the appellant-defendant- licensee from the suit premises. The said Title Suit No. 41 of 2013 was dismissed vide judgment dated 31.08.2019. The defendant preferred Civil Appeal No. 93 of 2020 on 09.07.2020 and the same was placed before the learned Principal District Judge, Jamshedpur for the first time on 13.07.2020. Office of the 1 Second Appeal No. 66 of 2021 Principal District Judge, Jamshedpur reported that the court fees has not been filed by the appellant and that the appeal was delayed by 261 days. No application to condone the delay was filed on behalf of the appellant. The learned Principal District Judge, Jamshedpur observed that the period of limitation for filing the appeal expired before the lockdown in connection with COVID-19 Pandemic; which began in the month of March, 2020. The appellant was informed about the defects of the limitation and other defects also. Consequent upon that, the appellant filed court fees of Rs.840/- on 10.08.2020 but till 22.02.2021, no application was filed for condoning the delay or explaining the delay in filing the Civil Appeal No. 93 of 2020 in the Court of learned Principal District Judge, Jamshedpur. Repeated directions were given by the learned Principal District Judge to the counsel for the appellant to remove the defects. At the time of hearing on 22.02.2021 when the learned Principal District Judge, Jamshedpur, intimated the Advocate for the appellant about the delay in filing the appeal, the Advocate for the appellant considered that the appellant has not filed any application to condone the delay. The learned Principal District Judge considered the statutory duty cast upon the court by Section 3 of the Limitation Act, 1963 to ensure that the suits, appeals or applications are filed within the prescribed period of limitation. As the Civil Appeal No. 93 of 2020 was filed beyond the period of prescribed limitation, the same was dismissed 2 Second Appeal No. 66 of 2021 being barred by limitation. 4. It is submitted by the learned counsel for the appellant that the first appellate court has wrongly passed the impugned order in terms of Section 3 of the Limitation Act, 1963. It is next submitted by the learned counsel for the appellant that the learned first appellate court has not considered that Section 5 of the Limitation Act, 1963 does not speak of any application for condonation of delay. It is next submitted that the learned first appellate court did not appreciate that the appellant has sufficient cause for not preferring the appeal within the prescribed period. Hence, it is submitted that the impugned order passed by the learned first appellate court being the Principal District Judge, Jamshedpur in Civil Appeal No. 93 of 2020 dated 22.02.2021 be set aside after formulating appropriate substantial question of law. 5. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that Section 3(i) of the Limitation Act 1963 which reads as under:- “3. Bar of limitation.—(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. 2. xxxxX” Mandates inter-alia that every appeal preferred after the prescribed period shall be dismissed, even though the limitation has not been set up as a defense subject to the provisions 3 Second Appeal No. 66 of 2021 contained in Section 4 to 24 (inclusive of the) Limitation Act, 1963. True it is, that by exercising the power under Section 5 of the Limitation Act, 1963, inter-alia any appeal may be admitted after prescribed period, if the appellant satisfies the court that he has sufficient cause for not preferring the appeal within the prescribed period of limitation but here it is a case where, even though the appellant was repeatedly intimated about the defect of limitation at the time of hearing of the Civil Appeal No. 93 of 2020, the learned counsel for the appellant was also intimated about the fact that the Civil Appeal No. 93 of 2020 has been filed after the prescribed period of limitation but except conceding that the appellant has not filed any petition for condonation of the delay, there is no material in the record either before the learned first appellate court or even in this second appeal, as to what prevented the appellant for not filing the Civil Appeal No. 93 of 2020 within the prescribed period of limitation. If at all the appellant was prevented by any good cause or sufficient cause in filing the appeal, the appellant must have mentioned the same before the learned first appellate court or even before this Court but no reason for the delay in filing the Civil Appeal No. 93 of 2020 having been put forth by the appellant, certainly there is no way, the learned first appellate court could have exercised the power under Section 5 of the Limitation Act, 1963. 6. Under such circumstances, this Court is of the considered view that it being a settled principle of law that it is the duty of 4 Second Appeal No. 66 of 2021 the court to check at the threshold, whether the appeal is barred by limitation even if the same is not raised by the either side; hence, this Court do not find any illegality having been committed by the learned Principal District Judge, Jamshedpur in dismissing the Civil Appeal No. 93 of 2020 being barred by limitation and there is absolutely no substantial question of law involved in this appeal. 7. Accordingly, this appeal being without any merit is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 23rd October, 2024 AFR/ Sonu-Gunjan/- 5 Second Appeal No. 66 of 2021