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2014 DIGILAW 629 (PNJ)

Babu Lal v. Rakesh Kumar

2014-03-26

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.:- The defendants are in appeal against the judgment and decree of both the Courts below by which suit filed by the plaintiffs for possession by way of specific performance of the agreement dated 16.11.2005 (Ex.P3) has been decreed and it has been ordered that since the balance sale consideration has already been paid by the plaintiffs vide FDR No.462979 dated 15.1.2010, the defendants should execute the sale deed in favour of the plaintiff, failing which the plaintiff would be entitled to get it executed through the agency of the Court. 2. The present appeal has been filed along with an application bearing CM No.3888-C-2014 filed under Section 5 of the Limitation Act, 1963 [for short ‘the Act’] for condonation of delay of 776 days in filing of appeal. It is averred in the application that the applicants/appellants are rustic villagers and were unaware of the procedure of filing the appeal, therefore, they could not file it in time. 3. I have heard learned counsel for the appellants and perused the record. 4. The appeal lies to the High Court under the Code of Civil Procedure, 1908 and in terms of Article 116(a) of the Act the limitation is 90 days from the date of decree. 5. Section 12 of the Act provides for exclusion of time spent in obtaining certified copy of the order/decree against which the appeal is sought to be filed. Section 5 of the Act further provides that the period for filing an appeal can be extended and the appeal may be admitted after the prescribed period, if the applicant/appellant satisfies the Court that he had a “sufficient cause” for not preferring the appeal within the prescribed period. The sine qua non is thus “sufficient cause” which depends upon the facts and circumstances each case. 6. In the present case, the cause assigned by the appellants for the condonation of delay in filing the appeal is that they are the rustic villagers and were under mistaken belief that since they have lost before both the Courts of law, therefore, have had no remedy available. The reason assigned by the appellants cannot be believed because the appellants have been pursuing their litigation before the Courts below through Advocate and must have sought his legal advice for future course of action after having lost their case before the Appellate Court. The reason assigned by the appellants cannot be believed because the appellants have been pursuing their litigation before the Courts below through Advocate and must have sought his legal advice for future course of action after having lost their case before the Appellate Court. Thus, the reason assigned in the application does not fall within the ambit of “sufficient cause” and hence the delay of 776 days in filing the appeal cannot be condoned and the application is thus dismissed. 7. Needless to mention that once the application for condonation of delay is dismissed, the appeal is not found to have been filed within limitation, the same is also hereby dismissed. ---------0.B.S.0------------