Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 548 (PAT)

Baleshwar Mochi v. Kundan Devi

2001-07-09

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This Miscellaneous Appeal is directed against the order dated 10-1-1994 passed by 3rd. Additional District Judge, Begusarai, in Miscellaneous case No. 2/93. 2. The relevant facts are that the respondents 1st party had filed title Suit No. 88 of 1977. The suit was decreed. Then, the appellant Baleshwar Mochi along with respondents 2nd set filed the aforesaid title appeal No. 2/93. This appeal was, however, pending for deposit of cost for service of notice upon the respondents of the aforesaid appeal. In this connection, an order dated 8-8-1991 was passed directing the appellant to file the requisites for service of notice against the respondents 11, 12 and 14. Some of respondentsd 2nd set who had filed the appeal were warking as labourers in the State of Assam and Phulena Paswan, respondent No. 6, was entreated with the pairvi of the appeal. Phulena Paswan was living at Begusarai and, therefore, he was entrusted with the work of taking steps in the appeal. Phulena Paswan failed to take proper steps and hence, the appeal was dismissed on 15-4-1993. The appellant along with Phulena Paswan and other appellants in the lower Court filed miscallaneous case No. 2/93 for remission of the appeal under Order XLI, Rule 19, C.P.C. However, the miscallaneous case was dismissed by the impugned order. 3. The lower appellate Court erred in applying proper Article which governs filing of an application under Order XLI, Rule 19, C.P.C. Moreover, a party cannot be allowed to suffer on account of laches on the part of other appellant although the defaulting appellant may be negligent in prosecuting the appeal. The Court also should be liberal in interpreting the explanation for delayed filing of the miscellaneous case and no technical view can be taken regarding the explanation of each and every day of delay. 4. In this appeal, both parties were heard. 5. The respondents lawyer referred to Article 122 of the Indian Limitation Act which provides for a period of thirty days from the date of dismissal of the suit or appeal for filing an application for restoration of the suit or appeal. 4. In this appeal, both parties were heard. 5. The respondents lawyer referred to Article 122 of the Indian Limitation Act which provides for a period of thirty days from the date of dismissal of the suit or appeal for filing an application for restoration of the suit or appeal. Learned lawyer for the appellant distinguished the word restoration as mentioned in the Article with readmission and submitted that a suit or appeal dismissed in default after admission may be restored under Article 122 and for an application for restoration of such a kind the period of limitation is provided under Article 122. But, for readmission of an appeal under Order XLI, Rule 19, C.P.C. Article 122 does not apply and there is no other Article provided for in the Limitation Act and, so, Article 137 shall apply which provides for a period of three years. 6. However, I find that the learned lawyer has, perhaps, misinterpreted Order XLI, Rule 19, C.P.C. This rule provided for readmission of an appeal dismissed, Under Rule 11 (an appeal dismissed summarily after its admission). Sub-rule 2 of Rule 17 (when an appeal is dismissed on the date fixed for hearing and the appellant does not respond to the call), Rule 18 (when an appeal was heard ex-parte). So, Order XLI, Rule 19 provides for readmission of an appeal which was dismissed under Rule 11, 17 or 18 and all these rules are applicable to the hearing of the appeal after its admission. There is no other provision for restoration of an appeal in Order XLI. So, when Article 122 of the Limitation Act has used the word restoration of a suit or appeal, that word shall be easily referable to the word readmission used under Order XLI, Rule 19, C.P.C. So, when there is a definite Article governing applications made under Order XLI, Rule 19, C.P.C, there can be no application of Article 137. The argument of the appellants lawyer, in this connection, is puerile. 7. Now, the question is whether there was laches on the part of the appellant to prosecutes his appeal in the lower Court. In this connection, the impugned order is clear to the effect that when there was an order dated 8-8-1991 to file requisites and the same were not filed will 15-4-1993, the appeal was dismissed. 7. Now, the question is whether there was laches on the part of the appellant to prosecutes his appeal in the lower Court. In this connection, the impugned order is clear to the effect that when there was an order dated 8-8-1991 to file requisites and the same were not filed will 15-4-1993, the appeal was dismissed. So, apparently for about 2 years, the appellant had failed to file requisites. Hence, the appeal was rightly dismissed. In the miscellaneous case No. 2/93 the appellant has stated that pairvi of the appeal was entrusted to Phulena Paswan who defaulted to take steps and it was stated by him that since the fund with him had exhausted, he failed to take steps. It is to be noted that Phulena Paswan was also an appellant and has interest was common with other appellants. So, to advance the plea that Phulena Paswan failed to take steps on account of non-availability of fund is not convincing. Cost for service of notice is not so high as to cause any handicap in depositing the cost of the notice on the part of Phulena Paswan. It is also not acceptable that the appellant or his other co-sharers who were working at Assam would be sitting tight for near about two years and would not come to their native place in the State of Bihar during the whole period to enquire about the date of the appeal. This plea cannot be accepted without a pinch of salt. 8. It was also submitted by the appellants lawyer that miscellaneous case was filed after three months of the dismissal, but as a matter of fact, there was only two months delay because one month was the time-limit. In this connection, I am of the opinion that time of limitation shall start running from the date of dismissal. So, admittedly, there was three months delay because miscellaneous case was filed on 14-7-93 and the appeal was dismissed on 15-4-93. Three months delay was not an ordinary delay. So, even if each days delay was not to be taken into account for the Court not to be hypertechnical, the delay of even two months after discounting the period of 30 days, was sufficient delay for which there was no satisfactory explanation in the condonation petition filed by the appellant under Sec. 5 of the Limitation Act. So, even if each days delay was not to be taken into account for the Court not to be hypertechnical, the delay of even two months after discounting the period of 30 days, was sufficient delay for which there was no satisfactory explanation in the condonation petition filed by the appellant under Sec. 5 of the Limitation Act. Therefore, the lower Court rightly dismissed the miscellaneous case. 9. Of course, the law is that the Court has to impart justice to the parties and in case of restoration Court should be liberal in interpreting the explanation for delay. But, the Court is also enjoined to see whether the explanation for delay is just an explanation for the sake of explanation and whether it is genuine or not. It is common knowledge that parties to any suit or appeal would like to delay the disposal of the same in order to defeat the cause of justice of the parties. Procedure is misused by the parties to the suit or appeal towards this end. So, the Court has to strike a balance between the two extremes to be liberal in interpreting the explanation; as also to be circumspect in preventing a party intending to delay the disposal of an appeal in order to deprive the other party to enjoy the fruits of a decree. 10. In the instant case, I do not think that the appellant was candid and that his bona fides were above board in prosecuting the appeal. 11. In the result, this miscellaneous appeal is dismissed.