R/o Mahuwa, Distt. Dausa v. Brij Mohan S/o

Judgment

1. Brij Mohan S/o Shri Gulab Chand Jangid, Leelapada, At Present R/o Sikrai, Distt. Dausa Kishori Lal S/o Chhaju Lal, Sikrai Bhola Ram S/o Shri Ram Sahai Mali, Sikrai

3. ----Respondents For Appellant(s)

: Mr. Sahil Duesja for Mr. Dinesh Kala For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 28/03/2025 Order

1. Instant second appeal is preferred by appellant plaintiff aggrieved from Judgment dated 17.07.1999 in civil regular appeal No.19/1998 passed by learned Additional District Judge, Bandikui, Dist. Dausa whereby an appeal preferred by appellant plaintiff against judgment and decree dated 03.05.1995 in civil suit No.02/1993 was dismissed on the ground that the appeal is filed after a substantial delay.

2. Learned counsel for plaintiff appellant while relying upon grounds of appeal submitted that plaintiff has filed a suit for injunction and removal of encroachment but trial court has partially allowed the suit and granted injunction but refused to grant relief of removal of encroachment. He further submitted that [2025:RJ-JP:23244] (2 of 6) [CSA-556/1999] aggrieved plaintiff has preferred an appeal, which was dismissed on the ground that the appellant has failed to explain reasons of delay from 12.07.1995 to 27.07.1995. He further submitted that delay was very minimal but the appellate court has not considered the purpose and object behind provision under Section 5 of Limitation Act. At last, he submitted that in order to ventilate his grievance, it is necessary that this appeal be allowed and matter be remitted back to the appellate court.

3. On 08.12.2006, name of respondent No.2 was deleted from array of the respondents. Remaining respondent Nos. 1 and 3 remained absent despite service. This Court while considering the issue of admission has directed for issuance of notice to respondent No.1 and thereafter notice was served upon respondent No.1 and no one appeared on behalf of respondent No.1.

4. While considering the appeal on admission, this Court has framed following substantial question of law on 03.07.2007: (i) Whether the findings of fact by the learned courts below which are not based on proper consideration and scrutiny of the evidence available on record are binding in second appeal? (ii) Whether once an appeal is admitted 4 years ago, the same can be dismissed on the technical ground of limitation after four years?”

5. The facts of the case giving rise to present appeal in brief are that appellant plaintiff Om Prakash has filed a civil suit against Brij Mohan, Kishori Lal and Bhola for injunction and removal of possession. Defendants have filed their written statement and on [2025:RJ-JP:23244] (3 of 6) [CSA-556/1999] the basis of pleadings, three issues were framed. The plaintiff has examined four witnesses whereas defendants have examined three witnesses. Learned trial court has decided issue No.1 about ownership of disputed Gali (passage) in favour of plaintiff. The finding on issue No.1 was not challenged by defendants and it indicated that the gali (passage) belongs to plaintiff. The trial court has granted a decree for injunction but refused to grant decree for removal of encroachment made in gali (passage).

6. Dissatisfied plaintiff has filed an appeal before the appellate court on 28.07.1995 with an application under Section 5 of Limitation Act, for condonation of delay. The plaintiff with an affidavit has mentioned that on 11.07.1995 after receiving copy of judgment, he met with an accident and he could not recover till

27.07.1995, to file appeal.

7. The trial court has passed judgment on 04.05.1995 and month of June is assigned for summer vacation. As soon as the court reopens after summer vacation in first week of July, then the period of limitation which has started from next day (04.05.1995) has come to an end. The appellant plaintiff has stated that he has received copy on 11.07.1995. Now the question is whether time period of around 15-17 days is too much on the basis of which an appeal can be dismissed without affording an opportunity of hearing to the aggrieved party.

8. In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon’ble Supreme Court laid down the following principles to allow application under Section 5 of the Limitation Act:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. [2025:RJ-JP:23244] (4 of 6) [CSA-556/1999]

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

9. Recently, condonation of delay under Section 5 of Limitation Act was considered by Hon’ble Supreme Court in case of P. Subba Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector (LA) 2024 INSC 286 wherein also it was held that if sufficient cause is shown the application under Section 5 of Limitation Act can be allowed. The underlying provisions after harmonious construction of provision of law were formulated in following manner:- (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come [2025:RJ-JP:23244] (5 of 6) [CSA-556/1999] to an end or cease to exist after a fixed period of time; (iii) The provisions of the L imitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; liberal (iv) In order to advance substantial justice, though justice-oriented approach, approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamount to disregarding the statutory provision.

10. Considering the law of limitation, particularly Section 5 of Limitation Act, which is applicable in case of appeal or revision, then it is duty of the appellate court to consider an application for condonation of delay in proper aspect. Herein the delay is not too much therefore the appellate court without following principle of law has dismissed the application under Section 5 of Limitation Act and due to dismissal of application, the appeal was also dismissed.

11. When an appeal is admitted by appellate court then it could not be dismissed merely on technicalities rather proper [2025:RJ-JP:23244] (6 of 6) [CSA-556/1999] adjudication is required. Considering the substantial question of law this appeal is liable to be allowed and matter is required to be remitted back to the appellate court.

12. In view of discussion made hereinabove, instant S.B. civil second appeal is allowed and judgment dated 17.07.1999 in civil regular appeal No.19/1998 passed by learned Additional District Judge, Bandikui, Dausa is set aside and the appeal is remitted back with direction to allow application under Section 5 of Limitation Act to condone the delay. The appellate court is directed to give opportunity of hearing to both parties and decide appeal at earliest preferably within three months from the date of receipt of copy of this order. The parties are directed to appear before the appellate court on 14.07.2025.

13. Misc. application, if any, stands disposed of.

14. No order as to costs. PREETI VALECHA /147 (ASHOK KUMAR JAIN),J