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2013 DIGILAW 1989 (ALL)

BRAHMA DEO SINGH v. SHIV PUJAN SINGH

2013-08-01

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Delay Condonation Application No. 889 of 1992 is taken up for order. This is an application to condone the delay in filing the appeal. The second appeal has been filed against the judgment and decree dated 6.12.1988 passed by the 9th Additional District and Sessions Judge, Gorakhpur in appeal No. 42 of 1985 arising out of the judgment and decree dated 15.1.1985 passed by the 4th Munsif, Gorakhpur in Original Suit No. 594 of 1982 (Mahatam and others v. Ram Subhag and others). The suit was filed by the appellant (plaintiff), seeking permanent injunction over the property in suit. The suit was dismissed. The appeal No. 42 of 1985 filed against the aforesaid judgment and decree has also been dismissed vide judgment and order dated 6.12.1988. 2. This appeal was filed in the year 1992 and as per the report of the stamp reporter dated 11.8.1992, it is beyond time by 1058 days. The delay has been explained by stating that the respondent-defendant has also filed a suit No. 700 of 1982 before 5th Munsif, Gorakhpur for the same relief. The application filed by the appellant for consolidating both the suits was rejected. The suit filed by the respondent was decreed on the basis of the compromise dated 28.11.1984 and the appeal filed by the plaintiff was allowed on 16.2.1991 and the matter was remitted back on 26.2.1991 for fresh decision. The respondent, in this case, has filed application No. 142-C for withdrawal of the suit. The said application was allowed and the suit was dismissed as withdrawn on 1.12.1991. 3. The appellant’s suit No. 594 of 1982 was dismissed vide judgment and decree dated 15.1.1985 passed by the 4th Munsif, Gorakhpur. The appeal filed by the appellant against the aforesaid judgment and decree was also dismissed on 6.12.1988, against which the present appeal has been filed. 4. It is stated in paragraph No. 5 of the affidavit filed in support of the delay condonation application that the appellant was advised by the local counsel not to file appeal against the judgment and decree dated 6.12.1988 passed in the appellant’s appeal. The appellant has not even stated the name of the counsel who has given advice not to file appeal against the judgment and decree dated 6.12.1988 passed against the appellant dismissing the appeal. 5. The explanation furnished by the applicant-appellant is not convincing. The appellant has not even stated the name of the counsel who has given advice not to file appeal against the judgment and decree dated 6.12.1988 passed against the appellant dismissing the appeal. 5. The explanation furnished by the applicant-appellant is not convincing. It appears to be imaginary and self-engineered. It is the plaintiff who has filed the suit seeking permanent injunction against the respondent. His appeal was dismissed. Both the Courts below have held that the defendant is in possession over the land in suit and the plaintiff has no concern. The finding and the conclusion of both the Courts below being so, it is not believable that the plaintiff, instead of challenging both the judgments, was advised to contest the suit filed by the other side, particularly in the circumstance, when name of the counsel has not been mentioned in the affidavit filed in support of the delay condonation application. 6. The submission of the learned counsel for the appellant is that being semi literate person, the appellant has not been able to understand the implications not to file appeal against the decree dismissing the suit and appeal. It is also submitted by the learned counsel for the applicant that while considering an application for extending the period of limitation under Section 5 of the Limitation Act, the Court should take liberal view and exercise the discretion in favour of the applicant seeking condonation of delay. He has further submitted that law of limitation is not meant to take away the right of appeal, therefore, the delay in filing the appeal be condoned and the appeal be heard on merit. 7. I have seen the contents of the affidavit filed in support of the delay condonation application and considered the submissions of learned counsel for the appellant-applicant. 8. The conduct of the applicant, to my mind, is not bona fide. The applicant has failed to take appropriate steps at the appropriate time. When his suit and appeal both were dismissed, it was to be contested on its own merit in which he failed. It is the requirement of the statute that the second appeal should be filed within 90 days from the date of the judgment and decree of the lower appellate Court. Of course, the time spent in getting certified copies is excluded while computing the period of limitation. It is the requirement of the statute that the second appeal should be filed within 90 days from the date of the judgment and decree of the lower appellate Court. Of course, the time spent in getting certified copies is excluded while computing the period of limitation. Here in this case, the appeal was dismissed by the lower appellate Court on 6.12.1988 and the appeal was preferred in the year 1992, taking shelter of the wrong legal advice by pursuing the fate of the case instituted by the respondents. The Apex Court in Balwant Singh v. Jagdish Singh and others, 2010 (8) SCC 685 , has held that in absence of plausible/convincing explanation for condonation of delay in accordance with requirement of law, the delay should not be condoned. 9. In Lanka Venkateswarlu v. State of Andhra Pradesh and others, 2011 (4) SCC 363 , the Apex Court has observed that liberal approach in considering the sufficiency of cause for delay should not override substantial law of limitation, especially, when the Court finds no justification for delay. Same view has again been taken by the Apex Court in Postmaster General and others v. Living Media India Limited and another, 2012 (3) SCC 563 . 10. In view of the law laid down by the Apex Court and considering the cause shown by the appellant-applicant in not preferring the appeal within time, I am satisfied that the delay has not been properly explained, as there is a lack of bona fide coupled with the negligent actions of the appellant-applicant in not filing the appeal within time. The application for condonation of delay is rejected. ——————