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2014 DIGILAW 1578 (RAJ)

Purshottam Lal v. Pradeep Kumar

2014-09-24

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against the judgment and decree dated 22.3.2014 passed by the District Judge, Churu, whereby the appeal filed by the appellant against the judgment and decree dated 30.10.2010 passed by the Civil Judge (Jr. Div.), Churu has been rejected as barred by limitation. 2. The respondents-plaintiffs filed a suit for permanent and mandatory injunction against the appellant seeking restrain against him from interfering in the possession of the suit property. 3. A written statement was filed by the defendant-appellant, to which a replication was also filed. The plaintiff led his evidence and after closure of evidence by the plaintiff, the trial court after granting ten adjournments and when defendant or his counsel was not present, directed to proceed ex-parte. Where after, learned counsel for the defendants appeared and after hearing the parties, by judgment and decree dated 30.10.2010, the suit filed by the plaintiff was decreed by the trial court. 4. Feeling aggrieved, the appellant filed first appeal on 16.1.2012. As the appeal was barred by limitation, the appellant filed an application under Section 5 of the Limitation Act seeking condonation of delay. It was inter-alia claimed in the application that the appellant was not provided any opportunity of hearing, he was not aware of judgment and decree and as the appellant is employed, he is required to remain out of Churu in connection with employment, his brother Laxmi Narayan is living separately and is not on talking terms, who also did not inform him. It was, therefore, claimed in the application that when on 5.2.2012, the appellant went to the disputed plot, certain unknown persons informed him that already a judgment has been passed in favour of the plaintiff, when for the first time, he came to know about passing of the impugned judgment and decree, thereafter, the appeal is being filed without any loss of time. 5. The Appellate Court after hearing the parties and examining the judgment impugned before it, came to the conclusion that the plea raised by the appellant does not make out a case for condonation of delay as the negligence of the appellant is writ large on the record and consequently, dismissed the application as well as appeal filed by the appellant. 6. 6. It is submitted by learned counsel for the appellant that the first appellate court fell in error in dismissing the application filed under Section 5 of the Limitation Act. It is further submitted that the appellate court has considered the appeal on merits as well and therefore, from the record it is apparent that the trial court committed error in passing the impugned decree even when the evidence of the respondents was not available on record. 7. Learned counsel for the respondents duly supported the judgments impugned passed by the courts below. 8. I have considered the rival submissions and have perused the judgment passed by both the courts below as well as certified copy of the application filed by the appellant under Section 5 of the Limitation Act as produced by learned counsel for the respondent. 9. From a bare perusal of the facts, it is apparent that the evidence of the appellant-plaintiff was closed by the trial court on 12.8.2010 on account of non-appearance of the defendant and/or his counsel after having provided ten opportunities to lead evidence. Where after, learned counsel for the defendant again joined the proceedings, where after hearing the parties, the impugned judgment and decree dated 30.10.2010 was passed by the trial court. 10. The first appeal appears to have been filed on 16.1.2012 i.e. almost after 14 months of passing of the impugned judgment and decree and 16 months from the time when evidence of the defendant was closed by the trial court. Where after, in the application seeking condonation of delay, the defendant has not explained as to what transpired between the period from 12.8.2010 to 16.1.2012, when he claims to have obtained knowledge of passing of the decree and as to whether he cared to contact the counsel regarding the pending suit which was going on since the year 1994. 11. The very fact that no averment whatsoever has been made in the application in this regard clearly reflects the total indifferent attitude of the appellant and in fact, his conduct has been apparently negligent. 12. The Hon'ble Supreme Court in Basawaraj and Anr. v. Special Land Acquisition Officer : 2013 DNJ (SC) 829 after scanning the entire law on the aspect summarised the same as under:- "15. 12. The Hon'ble Supreme Court in Basawaraj and Anr. v. Special Land Acquisition Officer : 2013 DNJ (SC) 829 after scanning the entire law on the aspect summarised the same as under:- "15. The law on the issue can be summarised to the effect that where a case has been presented in the Court beyond limitation, the applicant has to explain the Court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the Court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Hon'ble Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigation to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature." 13. In view of the above, the first appellate court was justified in rejecting the application seeking condonation of delay. 14. So far as the judgment in the case of Govind Singh Parihar v. Ramvilas and Anr. : 2014(3) DNJ (Raj.) 1136 as relied on by learned counsel for the appellant is concerned, in the said case a specific averment in the application was made seeking to place the burden on the counsel having advised the appellant therein to wait for passing of the judgment in a Full Court reference, which was pending and after taking into consideration the said fact, the delay in filing appeal was condoned. The ratio of the said judgment and facts therein are not applicable to the facts of the present case. 15. So far as the submission of learned counsel for the appellant regarding observations of the appellate court on merits of the controversy is concerned, the said observations have apparently been made only with a view to test the tenability of the application under Section 5 of the Limitation Act. 16. 15. So far as the submission of learned counsel for the appellant regarding observations of the appellate court on merits of the controversy is concerned, the said observations have apparently been made only with a view to test the tenability of the application under Section 5 of the Limitation Act. 16. No substantial question of law arise for consideration in this appeal.Consequently, the appeal has no substance and the same is, therefore, dismissed.Appeal dismissed. *******