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2007 DIGILAW 191 (JK)

Harbans Kour v. Swaran Singh

2007-09-14

J.P.SINGH

body2007
1. Petitioner Harbans Kour was a defendant in respondents suit for declaration to the effect that will stated to have been executed on 2-04-2000 by Faquir Singh, the father of the parties, and registered on 20th of April, 2000 in favour of the petitioner was null and void, And additionally, a permanent prohibitory injunction restraining the petitioner from selling, alienating or transferring the possession of land measuring 12 kanals 12 marlas comprised in Khasra Nos. 56, 205, 220, 221, 222, 223 and 53 situated at Village Flora, R.S. Pura and from raising any type of construction therein. 2. Considering the pleadings of the parties, the trial court framed preliminary as well as factual issues which read thus:- FRELIMINARY ISSUES:- (1) Whether the suit in the present form is not maintainable as the plaintiff has been dis-inherited by his father and is liable to be dismissed? OPD. (2) Whether the proper court fee has not been affixed and attached with the suit? OPD. (3) Whether the suit of the plaintiff is maintainable as the evacuee property is not liable to be transferred by way of will deed under Section 3 (A) of Agrarian Reforms Act? OPD. FACTUAL ISSUES:- (1) Whether the plaintiff is in possession of the suit property? OPP. (2) Relief to which the plaintiff is entitled to? Without commenting upon and deciding preliminary issue Nos. 1 & 2 and factual issue No.1, the trial court of learned Munsiff, R.S. Pura, relying upon a Division Bench Judgment of this Court reported as 2000 SLJ, 225, declared the Will to be null and void. While doing so, it held as follows: - "In my opinion, deceased Faquir Singh was not competent to execute the Will in respect of the suit land which as such appears to be evacuee property. The Will deed is not sustainable in the eyes of law and is liable to be declared as null and void. The Division Bench Judgment of Honble High Court of Jammu and Kashmir in its judgment cited in 2000 SLC 225 has also authenticated the Section 3 (A) of the Agrarian Reforms Act by holding that the transfer of occupancy rights by way of Will is not permissible. The Division Bench Judgment of Honble High Court of Jammu and Kashmir in its judgment cited in 2000 SLC 225 has also authenticated the Section 3 (A) of the Agrarian Reforms Act by holding that the transfer of occupancy rights by way of Will is not permissible. Not commenting on the merits of the case to the extent of level of fraud and manipulation as these facts are not liable to be scrutinized and analyzed as the Will deed is not permissible in law I feel no necessity to go into the adjudication of other preliminary issues as Will deed on the face of it cannot stand the test of law and is liable to be struck down. I hereby hold that the Will deed executed on 2-04-2000 and registered on 20-04-2000 by the Sub-Registrar, R.S. Pura has no sanctity in the eyes of law and is declared as null and void and cancelled also. The issue No.3 is accordingly determined in favour of the plaintiff and against the defendant. The parties are at liberty to agitate their rights before the appropriate forum of law for taking the benefit of Agrarian Reforms and Cabinet Order No. 578-C. The defendant is permanently restrained from selling, alienating or transferring the possession of suit land measuring 12 kanals 12 marlas comprised by Khasra Nos. 56, 205, 220, 221, 222, 223 & 53 situated at Village Flora, Tehsil R.S. Pura on the basis of the impugned Will. The other preliminary issues are not required to be adjudicated at this stage. The suit is partly allowed. The status quo order issued by the court stands vacated forthwith. There shall be no order as to costs. Decree sheet shall be drawn accordingly and the file shall be consigned to records after its due completion." 4. Petitioner Harbans Kour filed an appeal against the judgment of Learned Munsiff, R.S.Pura along with an application seeking condonation of 431 days delay in filing the appeal. 5. Petitioner had projected in her application that the counsel engaged by her to contest the suit before learned Munsiff had advised her that she need not appear in the court on every date of hearing and as and when need may so arise, he would accordingly inform her. She says that her counsel did not inform her about the decision of the case. 6. She says that her counsel did not inform her about the decision of the case. 6. Elaborating the reasons which prevented her from filing appeal against the judgment and decree, she says that being an illiterate and rustic villager, she was not able to come to the Court time and again to know about the progress of the case. And her husband, the only male member who had been taking care of the case, was arrested in FIR No. 47/2003 registered under Section 302/109 RPC and in that view of the matter, she could not know about the decision of the case which came to her knowledge only when the Patwari of the Village informed that the Will had been declared null and void by the Court. 7. This application was supported by her affidavit. Swarn Singh respondent filed his objections to this application saying that 431 days delay in filing the appeal had vested a right in him which right could not be taken away when the delay in filing the appeal had not been sufficiently explained. 8. Urging that petitioners explanation for not filing the appeal within the prescribed period of limitation was imaginary, it was asserted that the petitioner had to be vigilant in contesting the suit and was to remain in touch with the counsel so as to know about the fate of the case. Petitioners plea that her husband had been booked in a serious offence of murder and that she came to know about the decision of the case only from the Patwari of the Village has been denied for want of knowledge. The respondent, therefore, says that the delay had not been properly explained. 9. Learned Second Additional District Judge, Jammu, vide his order impugned in this revision petition, rejected petitioners application on the ground that the delay had not been properly explained. It dismissed petitioners application by a short order which reads thus: - "7.On perusal of file, it has been found that petitioner appellant has applied for the copy of judgment on 19-2-04 and copy has been furnished to her on 20-2-2004. Petition along with appeal has been presented in the court on 24-03-2004 that means more than a period of one month. The delay of this one moth has not been explained by the petitioner for condoning the delay of this period, for entertaining the appeal. Petition along with appeal has been presented in the court on 24-03-2004 that means more than a period of one month. The delay of this one moth has not been explained by the petitioner for condoning the delay of this period, for entertaining the appeal. Objection has been submitted by other side and has rightly pointed out that delay has not been explained by the petitioner/appellant properly and no sufficient cause has been shown to condone the delay. 8. It is, therefore, in view of the averments of the petition, in which delay has not been properly explained and no sufficient cause has been shown for condoning delay. Petition for condonation of delay is rejected and dismissed. 9. Since, petition for condonation of delay has been dismissed, so appeal preferred against the judgment and decree dated: 8.1.03 is also disposed off, as time barred. Petition and appeal file be disposed of accordingly and be consigned to records." 10. Mr. G. S. Thakur, learned counsel for the petitioner, submitted that the first appellate court had rejected petitioners application without taking into consideration the colossal loss which the petitioner would be put to if she was denied right to question the decree of the trial court which on the face of it was unsustainable because the trial court had, while decreeing the respondents suit omitted to decide the preliminary issues going to the very root of the maintainability of the suit and the factual issues which had been framed for adjudication by it in the suit. It was further urged that rather than advancing the cause of justice, the impugned order scuttles it and that too for reasons which were unsustainable. Learned Counsel urges that the first appellate court had not taken into consideration, the ground realities that the clients go by the advice of their advocates and appear in the court only when they are advised by their advocates to do so. Petitioner had been advised by her advocate not to come to the court on each and every date of hearing and that he would inform when her presence would be needed in the court. Petitioner had been advised by her advocate not to come to the court on each and every date of hearing and that he would inform when her presence would be needed in the court. He further submits that the first appellate court had omitted to consider that petitioners husband had been taken into custody in a heinous offence of murder and in that view of the matter, he, who had been going to the court to attend her case, too became disabled to follow the case. Learned Counsel submitted that substantial justice would require condonation of delay, keeping in view the peculiar facts and circumstances of the present case. Petitioner relies on M.K.Prasad v. P. Arumugam, (2001) 6 SCC 176, N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222, Bodh Raj and others v. Smt. Rano Devi, 2004 (1) SLJ 276, Ramlal and Others v. Rewa Coalfields, AIR 1962 SC 361 and The State of West Bengal v. The Administrator, Howrah Municipality and others, AIR 1972 SC 749. 11. Mr. Bachan Lal Kalgotra, learned counsel for the respondent, submitted that the judgments cited by petitioners counsel had no application to the facts of the case and that petitioner had not been diligent in defending respondents suit before the trial court. He says that every litigant has to be diligent in prosecuting/defending its case and any litigant who is not found vigilant in so doing is not entitled to seek condonation of delay. He further submitted that merits of the case cannot be looked into while considering a case for condonation of delay in filing the appeal. 12. I have considered the submissions of learned counsel for the parties and gone through the judgments cited by learned counsel for the petitioner. 13. He further submitted that merits of the case cannot be looked into while considering a case for condonation of delay in filing the appeal. 12. I have considered the submissions of learned counsel for the parties and gone through the judgments cited by learned counsel for the petitioner. 13. The plea projected by the petitioner in seeking condonation of delay in filing appeal against learned Munsiff, R.S.Puras judgment and decree that her husband who was taking care of the case had been arrested in a murder case and there was no male member in the family to take care of the case and that the learned counsel engaged by her had told her that there was no necessity for her to come to the court on each, and every date of hearing and that as and when there was any necessity of her presence, he would accordingly inform her, though noticed by the first appellate court, has not been dealt with by it. Her plea that she was a village rustic and illiterate who had gone by her Advocates advice in not attending the case on each and every date of hearing too has escaped consideration of the first appellate court which appears to have been swayed by non-explanation of one months delay in not filing the appeal from the date when the copy of the judgment had been obtained by the petitioner, in rejecting petitioners application. Learned First Appellate Court thus appears to have misdirected itself in not considering requisite factors which a court of appeal must bear in mind while considering the question as to whether or not a petitioner appellants request for condonation of delay warranted acceptance. Law laid-down by Honble Supreme Court of India and various High Courts of the country in dealing with applications seeking condonation of delay in filing appeals and as to what would expression "sufficient cause" mean in given facts and circumstances of the case, too appears to have escaped the notice of the First Appellate Court. Reference needs to be made at this stage to N. Balakrishnan verus M. Krishnamurthy, AIR 1998 SC 3222, where while dealing with a similar plea of advocates not informing his client, Honble Supreme Court of India had held as follows:- "8. Appellants conduct does not on the whole warrant to castigate him as an irresponsible litigant. Reference needs to be made at this stage to N. Balakrishnan verus M. Krishnamurthy, AIR 1998 SC 3222, where while dealing with a similar plea of advocates not informing his client, Honble Supreme Court of India had held as follows:- "8. Appellants conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what `a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when every body is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences: 9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious, and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss." 14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial Court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial Court but on a condition that appellant shall pay a sum of Rupees Ten thousand to the respondent (or deposit it in this Court) within one month from this date. 15. Reiterating its view taken in N. Balakrishanans case and other similar cases, Honble Supreme Court of India ruled in M.K. Prasad v. P. Arumugam, reported as (2001) 6 SCC 176 that: - "Even though the appellant appears not to be as vigilant as he out to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect of the property, concededly to be valuable. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect of the property, concededly to be valuable. While deciding the application for setting aside the ex-parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties." 16. The expression "sufficient cause" appearing in Section 5 of the Limitation Act came up for consideration before Honble Supreme Court of India on number of occasions when it was ruled that this expression should receive liberal construction for advancing the cause of substantial justice. 17. Petitioner had put up a specific case in her application that she had engaged a counsel to defend her in respondents suit before learned Munsiff, R.S.Pura, Jammu who had advised her not to appear in the Court on each and every date of hearing and that the counsel did not inform her about the judgment in the suit. It has further been pleaded by the petitioner in her application that her husband had been taken into custody in a serious offence under Section 302 RPC which factor too had disabled her to contact the advocate. All these pleas raised by the petitioner in her application have been simply denied and some of them only for want of knowledge. In view of evasive denial of the pleas raised by the petitioner in her application, one has to proceed on the premise that whatever the petitioner had alleged in her application that she could not know about the judgment because her advocate had not informed her about the decision of the case and that she had gone by the advice of her advocate that there was no necessity for her to appear in the Court on each and every date of hearing needs to be believed. 18. The petitioner, a Village rustic and illiterate woman, had done all what was expected of a bonafide litigation to do, in engaging an advocate to defend her in the suit filed by the respondent. 18. The petitioner, a Village rustic and illiterate woman, had done all what was expected of a bonafide litigation to do, in engaging an advocate to defend her in the suit filed by the respondent. Failure of the learned advocate representing her before learned Munsiff R.S. Pura to inform her about the decision in the suit cannot thus be construed as lack of diligence or inaction on her behalf which may deprive her altogether of her right to contest the judgment delivered in the suit and in projecting her rights in the property covered by the Will which had been executed by her father in her favour ousting the respondent from fathers properties, particularly in view of petitioners husbands arrest in a murder case, which she says, too had contributed to the delay in filing the appeal. 19. The dispute between the parties pertains to various parcels of land measuring 12 kanals 12 marlas and as to the validity or otherwise of the Will which the father of the parties had executed in favour of the petitioner. Refusal to condone delay and debarring the petitioner from maintaining appeal and questioning the judgment and decree of the trial Court, in these circumstances when the property in dispute is certainly valuable, may not advance the cause of substantial justice, particularly when the learned Munsiff had not gone into factual and other preliminary issues framed in the case inter alia as to the non-maintainability of the suit. 20. In view of the law laid down by Honble Supreme Court of India dealing with the approach which the Courts should adopt while considering condonation or otherwise of delay in filing appeals or other proceedings where time limit for filing appeals or having resort to other proceedings, is prescribed by the Statutory laws, and adopting a liberal approach so as to advance the cause of substantial justice and provide opportunity to the petitioner to contest respondents challenge to the will in question, which vests the properties of the late father of the parties in the petitioner, I am of the view that awarding of costs to the respondent would compensate the respondent for the delay which has occasioned because of the non-filing of appeal within the prescribed period of limitation. I further find that the petitioner had succeeded in projecting sufficient cause which had disabled her from filing appeal within the prescribed period of limitation. I further find that the petitioner had succeeded in projecting sufficient cause which had disabled her from filing appeal within the prescribed period of limitation. 21. For all what has been said above, this revision petition is allowed setting aside the impugned order of Learned Second Additional District Judge, Jammu. Petitioners application for condonation of delay is allowed subject to payment of Rs. 5000/- as costs which shall be paid by the petitioner to the respondent within a period of one month. On payment of costs, the appeal of the petitioner shall be taken up for consideration by the Learned Second Additional District Judge, Jammu. Parties through their counsel are directed to appear before Learned Second Additional District Judge, Jammu on 20th of October, 2007.