Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 2005 (RAJ)

Raju Ancheri v. Rekha Gehlot

2014-12-05

ARUN BHANSALI

body2014
JUDGMENT 1. - This writ petition is directed against order dated 14.01.2009 passed by the District Judge, Jodhpur, whereby, the appeal filed by the petitioner against the judgment and decree dated 02.08.2008 passed in Civil Original Suit No.14/2007 by Civil Judge (Senior Division), Jodhpur was dismissed as time barred. 2. The respondent Rekha Gehlot filed a suit for recovery of a sum of Rs. 25,350/- alongwith interest against the petitioner. The suit was filed under provisions of Order 37 CPC. The petitioner filed application under Order 7, Rule 11 CPC questioning the maintainability of the suit under Order 37, however, the trial court decreed the suit filed by the plaintiff, as the application filed by the petitioner under Order 7, Rule 11 CPC was rejected and leave to defend was not granted. 3. Feeling aggrieved, the petitioner filed first appeal under Section 96 CPC. The appeal was barred by limitation. Alongwith the appeal an application under Section 5 of the Limitation Act, 1963 was filed by the petitioner and it was pointed out that as the appellant was too busy with his work and was mostly outside Jodhpur, he could not contact his lawyer and during Diwali vacations, he contacted his lawyer and, whereafter, the appeal has been filed without any further delay and sought condonation of delay. 4. The first appellate court after hearing the parties and on consideration of the averments contained in the application came to the conclusion that the reasons indicated cannot be said to be bonafide and does not constitute sufficient cause and, consequently, dismissed the application filed by the petitioner resulting in dismissal of the appeal as well. 5. The suit having been decreed for less than Rs. 25,000/-, the present writ petition has been filed. 6. Though, under Section 102 CPC, a second appeal is barred when the subject matter of the original suit is for recovery of money not exceeding Rs. 25,000/-. In the present matter, the subject matter of the original suit was Rs. 25,350/- and, therefore, it cannot be said that the appeal under Section 100 CPC was barred. However, looking to the subject matter of the suit, no useful purpose would be served in re-ligating the petitioner to the remedy of filing second appeal. 7. 25,000/-. In the present matter, the subject matter of the original suit was Rs. 25,350/- and, therefore, it cannot be said that the appeal under Section 100 CPC was barred. However, looking to the subject matter of the suit, no useful purpose would be served in re-ligating the petitioner to the remedy of filing second appeal. 7. Learned counsel for the petitioner submitted that the order passed by the first appellate court has been two pedantic and a small delay of 62 days has not been condoned and, therefore, the order deserves to be quashed and set aside. It was further submitted that the decree passed by the trial court under Order 37 CPC cannot be sustained and the petitioner had fairly good case before the first appellate court and, therefore, also the delay was liable to be condoned. 8. Learned counsel for the respondent submitted that the order passed by the first appellate court does not call for any interference by this Court and the writ petition deserves to be dismissed. The petitioner failed to make out any case for condonation of delay and the first appellate court rightly dismissed the application. 9. I have considered the rival submissions. 10. The fundamental argument raised by the counsel for the petitioner is that as the delay caused was a small delay of 62 days, the first appellate court should have condoned the delay. It is trite law that it is not the amount of delay, which is determinative of the merit in an application seeking condonation of delay, but as to whether the petitioner/applicant has been able to make out a case of sufficient cause for not approaching the court in time is the only determinative factor. A huge delay can be condoned, if a case is made out and even the so called small delay may not be condoned by the court, if it comes to the conclusion that the petitioner/applicant has failed to make out a case of sufficient cause. 11. In the present case, the petitioner filed application seeking condonation of delay with very casual approach and the reason given out was that as the applicant was busy with his work, he could not contact his counsel and, therefore, during Diwali vacations he contacted his counsel and, whereafter, the appeal was filed without any further loss of time. 12. 11. In the present case, the petitioner filed application seeking condonation of delay with very casual approach and the reason given out was that as the applicant was busy with his work, he could not contact his counsel and, therefore, during Diwali vacations he contacted his counsel and, whereafter, the appeal was filed without any further loss of time. 12. The reason indicated by the petitioner was too casual and cannot be said to be a sufficient cause for approaching the court with the delay. The first appellate court after thoroughly discussing the applicable law to the subject matter and relying on judgment of this Court in Shankar Lal v. Mangi Lal : 2007 (1) CDR 778 (Raj.) , refused to condone the delay. 13. No case is made out for interference in the order dated 14.01.2009 passed by the District Judge, Jodhpur in the extraordinary jurisdiction of this Court under Article 226 & 227 of the Constitution of India.Consequently, there is no substance in the present writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.Petition dismissed. *******