The High Court
Case Details
Second Appeal No. 108 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.108 of 2015 (Against the order dated 05.02.2013 passed by the learned Principal District Judge, Dhanbad in Title Appeal No. 32/2012) ------ M/s IndusInd Bank, a Banking Company incorporated under the Companies Act and M/s Ashok Leyland Finance Company Ltd. merged into the same in the year 2004, having its office at 113, Urmila Tower, 1st Floor, Bank More, Dhanbad PO & PS-Bank More, Dist.- Dhanbad, represented by its authorized person Shri Jai Prakash Prabhakar s/o Shri Ramadhar Singh 2nd floor, Arjan Palace, 5, Main Road, Ranchi, near Railway Over bridge, PO & PS- Chutia, Dist- Ranchi .... .... …. Appellant 1. Ajay Kumar son of Shri Rmadeo Prasad, resident of village Pawapur, Versus PO- Pawapur, PS-Topchanchi, Dist.- Dhanbad 2. Regional Manager, IndusInd Bank (M/s Ashok Leyland Finance Company Ltd., having its office at 113, Urmila Tower, 1st Floor, Bank More, Dhanbad PO & PS-Bank More, Dist.- Dhanbad ... .... …. Respondents For the Appellants For the Respondents : Mr. Aashish Kumar, Advocate : Mr. Rama Kant Tiwary, Advocate ------ ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the order dated 05.02.2013 passed by the learned Principal District Judge, Dhanbad in Title Appeal No.
Facts
32/2012 whereby and where under, the learned first appellate court has rejected the prayer to condone the delay of 510 days in filing the said appeal and in the absence of any sufficient cause for such delay; did not admit the appeal for hearing because of the delay. 3 The brief facts of the case is that the Title Suit No.1 of 2006 was decreed on contest by the learned trial court being the court of 1 Second Appeal No. 108 of 2015 Sub-Judge-V, Dhanbad vide its judgment dated 01.10.2010. The appellant filed Title Appeal No.32 of 2012 after a delay of 510 days. Along with the appeal memo an application under Section 5 of the Limitation Act was filed. The grounds taken in the application under Section 5 of the Limitation Act is as follows:- (i) The vehicle was surrendered/repossessed without any protest at the cost of the plaintiff prior to institution of the suit voluntarily. (ii) The plaintiff did not revoke the surrender of the vehicle in question. (iii) The appellant-defendant from the plaintiff-respondents claimed Rs.1,12,060/- along with other dues. (iv) The agreement stood unchallenged by the plaintiff. (v) Good cause prevails over sufficient cause in case of condoning the delay. (vi) Till filing application under Section 5 of the Limitation Act, the plaintiff has not sought any arbitration. (vii) The head office of the appellant at Chennai was not made necessary party in the suit as such there was immense communication gap between the appellant local office resulting in delay in obtaining necessary instruction from the Chennai head office to the appellant is also one of the reason. 4 The learned first appellate court in the impugned order has mentioned that though in the application under Section 5 of the 2 Second Appeal No. 108 of 2015 Limitation Act, it has been mentioned that the vehicle surrendered/repossessed without any protest at the cost of the plaintiff prior to institution of the suit voluntarily but such contention of the appellant was contrary to the judgment of the learned trial court dated 01.10.2010 where the appellant was directed to handover the vehicle in question to the plaintiff. Further, the learned first appellate court considered that there is no justification to condone the delay of 510 days as no sufficient cause for the same could be put forth by the appellant and in the absence of sufficient cause for the delay of 510 days in filing the appeal, did not admit the appeal for hearing. 5 At the time of Admission of this appeal, the following substantial questions of law were framed vide order dated 22.01.2019 by the Predecessor Judge in the Roster :- (i) Whether the order of the Trial Court was ex parte which was not considered by the Appellate Court? (ii) Whether in absence of the admitted documents, the case of plaintiff can be proved? (iii)Whether dismissal of First Appeal on the ground of limitation of 510 days against the ex parte judgment is justified? 6
Legal Reasoning
“9. … By the impugned judgment, the Division Bench has not only condoned the delay but taken a decision on merits as well. We are of the opinion that the second exercise was not justified as the only issue before the Division Bench was the question of limitation. We, accordingly, set aside the judgment of the Division Bench to the extent that it goes on to the merits of the controversy but maintain it insofar that it deals with the question of limitation.” 12. The expression “sufficient cause” as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.” 7 It is next submitted by Mr. Aashish Kumar that there is several lacunae in the judgment of the learned trial court and the same is not sustainable in law. Hence, the learned first appellate court ought to have condoned the delay in filing the appeal and would have given an opportunity to the appellant to contest the appeal in view of the illegality committed by the learned trial court which is apparent from the judgment and decree passed by the learned trial 4 Second Appeal No. 108 of 2015 court in Title Suit No.01 of 2006 which was impugned before the learned first appellate court. It is fairly submitted by Mr. Aashish Kumar that the substantial question of law no. 1 and 2 formulated by the Predecessor Judge in the roster in this appeal, is not relevant but the third substantial question of law be answered in the affirmative and the impugned order passed by the learned first appellate court be set aside and the learned first appellate court be directed to consider the First Appeal No.32 of 2012 on its merit. 8 Mr. Ramakant Tiwary, learned counsel for the respondents on the other hand defended the impugned order. It is further submitted by Mr. Tiwary that the appellant has failed to make even a single ground which can even remotely be termed as a sufficient cause for condoning the delay of 510 days in filing of the Title Appeal No.32 of 2012 before the learned first appellate court. It is next submitted by Mr. Tiwary that the grounds taken in the application under Section 5 of the Limitation Act which was filed along with Title Appeal No.32 of 2012 before the learned first appellate court has averment regarding the merits of the appeal and the only additional reason that as the head office of the appellant at Chennai was not made party to the suit, hence, there was communication gap, has no legs to stand because the head office of the appellant was very much aware about the pendency of the suit and even filed its written statement in the suit. It is next submitted by Mr. Tiwary that as the learned first appellate court has rightly did not condone the delay of 510 days in filing the appeal so, it was obviously not open for the 5 Second Appeal No. 108 of 2015 appellate court to consider the judgment of the learned trial court and the defendant was not set ex parte in the suit as is evident from the judgment and decree passed by the learned trial court as the suit was decreed on contest. Hence, the first substantial question of law is to be answered in the negative. So far as the second substantial question of law is concerned, it is submitted by Mr. Tiwary that as the learned first appellate court rightly did not condone the delay of 510 days in filing the Title Appeal No.32 of 2012 so, there was no occasion for the learned first appellate court to consider the merits of the case of the plaintiff and the learned first appellate court having not touched the merits of the judgment and decree passed by the learned trial court, there is no scope for this Court at this stage to consider whether the plaintiff has proved its case as the judgment and decree passed by the learned trial court has reached finality. Hence, it is submitted that the second substantial question of law be also answered in the negative. It is next submitted by Mr. Tiwary that as is evident from the contents of the application under Section 5 of the Limitation Act, absolutely no averments has been made therein as to why the appeal could not be filed within the stipulated time and some vague and vexatious averments has been made which can at best be termed as comments on the merits of the suit which was irrelevant so far as the application under Section 5 of the Limitation Act for condoning the long delay of 510 days in filing the appeal is concerned and the learned first appellate court having rightly dismissed the same, there is no justifiable reason to interfere with the impugned order passed by the 6 Second Appeal No. 108 of 2015 learned first appellate court. It is next submitted by Mr. Tiwary that as one of the ground for condoning the delay as per the appellant was that vehicle was surrendered/repossessed without any protest even though the same was no way remotely relates to be an explanation for delay in filing the appeal yet the same was out and out false averment hence the learned first appellate court as a passing remark has observed that even that irrelevant pleading was contrary to the contents of the judgment of the learned trial court. So such observation by the learned trial court cannot be termed that the learned first appellate court has touched the merits of the case. Hence, it is submitted that this appeal being without any merit be dismissed. 9 Having heard the submissions made at the Bar and after going through the materials in the record, so far as the first substantial question of law as to whether the order of the Trial Court was passed ex parte which was not considered by the Appellate Court is concerned, with due respect, this Court is of the considered view that the same is not a proper substantial question of law to be framed in this appeal because there is no material to suggest that the defendant was ever set ex parte during the trial of the suit, by the learned trial court and as the learned first appellate court has not condoned the delay in filing of the appeal hence, there was no occasion for the learned first appellate court to consider the judgment passed by the learned trial court on its merit. Hence, the first substantial question of law is answered in the negative. 10 So far as the second substantial question of law as to 7 Second Appeal No. 108 of 2015 whether in absence of the admitted documents, the case of plaintiff can be proved is concerned, with due respect, this Court is also of the considered view that the same is also not a relevant substantial question of law to be framed in this appeal as the learned first appellate court did not condone the delay in filing of the first appeal, there is no way the learned first appellate court could have gone to consider whether the plaintiff has succeeded in establishing his case or not and the learned first appellate court having not done so, certainly, it is not open in the second appeal to go to the merits of the judgment passed by the learned trial court, when the first appeal was not admitted by the first appellate court because of being barred by limitation. So the second substantial question of law is also answered in the negative. 11 So far as the third substantial question of law as to whether dismissal of First Appeal on the ground of being barred by limitation of 510 days against the ex parte judgment is justified is concerned, after carefully going through the grounds mentioned in the application under Section 5 of the Limitation Act before the learned first appellate court, this Court has no hesitation in holding that the grounds for condoning the delay, which has been referred to in detail in para-3 of this judgment also; falls short from being a sufficient cause to condone a delay of 510 days in filing an appeal for which the prescribe limitation period is 30 days and the appeal was filed after 540 days. So there is a delay of 510 days. The grounds mentioned in the application under Section 5 of the Limitation Act are irrelevant so 8 Second Appeal No. 108 of 2015 far as the explanation for the delay of 510 days in filing Title Appeal No.32 of 2012 is concerned. The grounds mentioned in the application filed under section 5 of the Limitation Act, 1963, at best are the contentions which could have been raised by the appellant in the learned trial court regarding the merits of the trial and as the appellant–defendant appeared before the learned trial court and filed their written statement and very much aware about the proceedings of the suit, this Court is of the considered view that merely because the head office of the appellant at Chennai was not made a party to the suit, the same does not constitute a sufficient cause for filing the appeal after the delay of 510 days. Accordingly, this Court is of the considered view that there is no illegality committed by the learned first appellate court in not condoning the delay of 510 days in filing the Title Appeal No.32 of 2012. Accordingly, the third substantial question of law is answered in the negative. 12 In view of the discussions made above, this Court is of the considered view that there is no merit is this appeal. 13 Accordingly, this appeal is dismissed on contest but under the circumstances without any costs. 14 Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 25th January, 2023 AFR/ Sonu-Gunjan/- 9
Arguments
Mr. Aashish Kumar, learned counsel for the appellant submits that the learned first appellate court has committed a gross error in touching the merits of the case though it did not allow the prayer to condone the delay in filing the appeal and did not admit the Title Appeal No.32 of 2012. In support of his contention, Mr. Aashish Kumar relied upon the judgment of Hon’ble Supreme Court of India in the case of S. Ganesharaju (dead) Through Lrs. & Anr. vs. 3 Second Appeal No. 108 of 2015 Narasamma (Dead) Through Lrs. & Ors. reported in (2013) 11 SCC 341 paragraph nos.9, 10 & 12 of which reads as under:- “9. Not only this, the learned Single Judge has even touched the matter on merits, which was not required to be done as the basic ground on which the review was filed by the appellants was not considered by the learned Single Judge. Thus, the appellants have been put to dual hardship. On the one hand, the delay has not been condoned and on the other hand even the merits have been touched, for which no arguments had been advanced by the learned counsel for the appellants. 10. Such a practice to be adopted by the courts, while deciding the application filed under Section 5 of the Limitation Act, especially while rejecting the same and yet touching the merits of the matter has been deprecated by this Court. (See S.V. Matha Prasad v. Lalchand Meghraj [(2007) 14 SCC 772] .) This Court has given the following direction to be followed, which reads as thus: (SCC p. 775, para 9)