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2014 DIGILAW 1177 (MP)

District Collector v. Himmatsingh

2014-09-18

PRAKASH SHRIVASTAVA

body2014
JUDGMENT Prakash Shrivastava, J. Heard finally with consent. 1. This second appeal under Section 100 of the CPC is at the instance of the defendant in the suit challenging the judgment of the First Appellate Court dated 8.1.2010, whereby the appeal preferred by the appellant has been dismissed as barred by limitation. 2. In brief, the respondent/plaintiff had filed the suit for declaration and permanent injunction pleading that the suit land is of his ownership and possession. In the revenue record, the revenue authorities had fraudulently entered the name of Shree Ram Mandir, Bawdikheda and the entry was corrected by the Sub Divisional Officer by order dated 27.3.2001, but the Collector without any jurisdiction by the order dated 25.7.2006 had set aside the order of the Sub Divisional Officer, against which an appeal has been preferred before the Commissioner but since the present appellants were trying to dispossess the respondent, therefore, the suit was filed. 3. The suit was opposed by the appellant denying that the suit property is the ancestral property of the respondent, and raising the plea that the suit property is the property of Shree Ram Mandir, Bawdikheda and from the income of the suit property the maintenance of the temple was done. Since these relevant facts were suppressed before the Sub Divisional Officer, therefore, the Collector had set aside the order of the S.D.O. 4. The trial Court by the judgment dated 31.10.2007 had decreed the suit filed by the respondent, against which the appellant had preferred an appeal before the Court of Additional District Judge, Garoth but there was some delay in filing the appeal, therefore, an application for condonation of delay was also filed, and the First Appellate Court by the order dated 8.1.2010 has dismissed the appeal on the ground of delay. 5. This Court by order dated 10.3.2014 had admitted the appeal on following substantial question of law:- "Whether the lower appellate court was justified to dismiss the appeal as barred by limitation though moving an application seeking condonation of delay, sufficient ground has been mentioned in the application, however, the dismissal of the appeal is sustainable in law?" 6. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the judgment was passed by the trial Court on 31.10.2007 and the appeal was preferred by the appellant on 2.1.2008. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the judgment was passed by the trial Court on 31.10.2007 and the appeal was preferred by the appellant on 2.1.2008. There was a delay of 62 days in filing the appeal. 7. On perusal of the application for condonation of delay filed by the appellant before the First Appellate Court, it is found that the appellant had made an application for receiving the certified copy of the judgment and decree on 10.12.2007, which was obtained on 14.12.2007. Thereafter, the time was consumed in obtaining the sanction for filing the appeal. The sanction was received on 21.12.2007, thereafter from 22.12.2007 to 31.12.2007 there was Court vacation and on 1.1.2008 also there was holiday in the Court. Therefore, the appeal was filed on 2.1.2008. The application for condonation of delay filed by the appellant clearly reveals that the delay was properly explained by the appellant. Even otherwise, the delay was only of 62 days. 8. The Supreme Court in the matter of State of Haryana Vs. Chandra Mani and others reported in 1996 (3) SCC 132 has held that certain amount of latitude is not impermissible when State is an applicant, praying for condonation of delay, considering the bureaucratic methodology. It has further been observed that if appeals brought by the State are lost for such default, no person is individually affected but in the ultimate analysis what suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The Supreme Court in the matter of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai reported in AIR 2012 SC 1629 and in the matter of G. Ramegowda Vs. Special Land Acquisition Officer reported in 1998 (2) SCC 142 has also expressed that while considering the "sufficient cause" under Section 5 of the Limitation Act, the liberal approach needs to be appointed. In the matter of Collector, Land Acquisition, Anantnag and another Vs. Mst. Special Land Acquisition Officer reported in 1998 (2) SCC 142 has also expressed that while considering the "sufficient cause" under Section 5 of the Limitation Act, the liberal approach needs to be appointed. In the matter of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others reported in AIR 1987 SC 1353 , it has been held that the power under Section 5 is to be exercised to do substantial justice and "sufficient cause' is elastic enough to enable the Courts to apply the law in a meaningful manner to do substantial justice. 9. Counsel for the respondent has placed reliance upon the judgment of the Supreme Court in the matter of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai reported in AIR 2012 SC 1629 but in that case also it has been held that in cases involving State and its agencies, the fact that sufficient time is taken in decision making process of State, can be taken note of by the Court but in that case the delay was not condoned, since it was inordinate delay of 7 years that too without giving sufficient explanation. Counsel for the respondent has also placed reliance upon the judgment of the Supreme Court in the matter of Office of the Chief Post Master General and others Vs. Living Media India Ltd. & Another reported in : AIR 2012 SC 1506 , but that was also a case of delay of 427 days where even the certified copy of the judgment was applied after 4 months, i.e. after expiry of the prescribed period of limitation but that is not the present case. 10. The first appellate court in the impugned order has also mentioned that no affidavit in terms of Order 41 Rule 3(a) of the CPC was filed in support of the application under Section 5 of the Limitation Act, but on the perusal of the record it is noticed that the first appellate court itself in the proceedings dated 5.1.2008 had noted that an application for condonation of delay was filed along with the affidavit. Even otherwise, it is noticed that the first appellate court has committed a procedural error in fixing the appeal for final hearing without deciding the application for condonation of delay and then considering the application for condonation of delay at the stage of final hearing. 11. Even otherwise, it is noticed that the first appellate court has committed a procedural error in fixing the appeal for final hearing without deciding the application for condonation of delay and then considering the application for condonation of delay at the stage of final hearing. 11. In view of the aforesaid analysis, I am of the opinion that the first appellate court is not justified in dismissing the appeal as barred by time. The appellant has properly explained the delay and considering the judgment of the Supreme Court which have been noted above, the first appellate court ought to have allowed the application under Section 5 of the Limitation Act. 12. In view of this, the impugned judgment of the first appellate court is set aside. The application under Section 5 of the Limitation Act filed by the appellant before the first appellate court is allowed and the matter is remanded back to the first appellate court for its decision, in accordance with law. C.C. as per rules.