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2015 DIGILAW 33 (JHR)

Gopinath Sahu v. Charanjeet Singh Mathur

2015-01-08

SHREE CHANDRASHEKHAR

body2015
Order I.A. No. 6434 of 2014 This application has been filed seeking stay of further proceeding in Title Appeal No. 23 of 2010 pending in the Court of District Judge-II, Jamshedpur. 2. The learned counsels for the parties submit that instead of hearing I.A. No. 6434 of 2014, the main writ petition itself can be heard and finally disposed of. 3. Accordingly, the I.A. No. 6434 of 2014 stands disposed of. W. P.(C) No. 920 of 2011 4. The learned counsel for the petitioner submits that the Title Suit No. 09 of 2002 for specific performance of contract of sale was decreed in favour of the petitioner on 23.09.2008 and accordingly, the petitioner instituted Execution Case No. 02 of 2009. The respondent appeared in the Execution Case and filed objection under Section 47 of C.P.C. The said objection was rejected by the Court below vide order dated 09.02.2010 against which, the respondent approached this Court by filing the writ petition being W.P.(C) No. 1132 of 2010. The writ petition has been dismissed vide order dated 21.05.2010 and thereafter, the respondent preferred appeal on 01.07.2010. In the application under Section 5 of the Limitation Act the ground taken by the respondent is “wrong advise” by the counsel. The petitioner appeared before the Appellate Court and filed his objection stating that the appellant (respondent herein) has failed to explain the delay. Though, he has been appearing in the execution case, he did not prefer any appeal and therefore, the application under Section 5 of the Limitation Act was liable to be dismissed and consequently, the appeal also. However, the First Appellate Court allowed the application under Section 5 of the Limitation Act vide order dated 05.01.2011 which is liable to be quashed. It is further submitted that the benefit of Section 14 of the Limitation Act can be extended only in cases where the appellant has been prosecuting the case in wrong forum. Since in the present case the respondent appeared in the execution case however, he did not prefer any appeal/revision/application and thus, it cannot be said that he was prosecuting the case before a wrong forum and therefore, the benefit under Section 14 could not have been granted and the application under Section 5 of the Limitation Act was liable to be rejected. 5. 5. The learned counsel for the respondent submits that though, the delay of 565 days in preferring the Title Appeal occurred, the said delay has been sufficiently explained and sufficient cause has been shown by the respondent for condonation of delay. The learned Appellate Court after considering each aspect of the matter exercised its discretion and condoned the delay of 565 days in preferring appeal and therefore, no interference is required in the present case. 6. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 7. It is not in dispute that after the suit was decreed in Execution Case No. 02 of 2009, the respondent appeared and filed his objection. The plea taken by the respondent in application under Section 5 of the Limitation Act is wrong advice by the counsel. The respondent has stated as under: “3. That the appellant finally fought a long battle through said advocate and finally the lower court passed an elaborate order Considering all issues and aspects of the challenge of the Decree and by order dated 09.02.2010. Being aggrieved by said order the appellant filed Civil Writ petition no. 1132 of 2010 before Hon'ble High Court and the matter was heard at length by Hon'ble Justice M.Y. Eqbal, and finally dismissed vide order dated 21.05.2010 holding there is no illegality in the impugned order passed by lower court. 4. That the appellant has come to this court not in clean hand and deliberately suppressed above stated fact, keeping this court in dark about the earlier attempt and proceeding by the appellant through his Senior Advocate Sri. M.P. Banerjee, by challenging the legality of the Decree. 5. That the appellant having lost upto Hon'ble High Court, now has come again to challenge the judgment Decree in this appeal. As such for such deliberate Suppression of a material fact, the appellant is not entitle to any discretionary relief of condonation of delay, particularly a long delay of 627 days on a false and baseless and perverse plea of wrong advice of lower court conducing lawyer the appellant could not challenge the judgment and Decree the Superior court, this plea become false and frivolous.” 8. From the aforesaid, it is apparent that the respondent took specific plea that due to wrong advice of the conducting lawyer, he could not prefer appeal in time and he continued to appear in the execution case. The contention of the learned counsel for the petitioner that the benefit under Section 14 of the Act could not have been extended, is liable to be rejected for the simple reason that the respondent has not taken a plea of prosecuting the case in the wrong forum. The learned Trial Judge took notice of the judgment of the Hon'ble Supreme Court in “M.K. Prasad Vs. P. Arumugam” reported in AIR 2001 SC 2497 and a decision of Patna High Court in “Shashi Shekhar Dubey Vs. Urmila Devi” reported in (2000) 2 PLJR 237 . In “M.K. Prasad case”, the Hon'ble Supreme Court has observed as under: “8. Again in State of West Bengal Vs. Administrator, Howrah Municipality (1972) 1 SCC 366 :( AIR 1972 SC 749 ) and G. Ramegowda, Major Vs. Special Land Acquisition Officer, Bangalore (1988) 2 SCC 142 : ( AIR 1988 SC 897 ) this Court observed that the expression “sufficient cause” in S. 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fide is not imputable to the party seeking condonotion of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan V. M. Krishnakurthy (1988) 7 SCC 123 (1998 AIR SCW 3139: AIR 1998 SC 3222 this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the delay. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the Court observed (para 9 of AIR): “It is axiomatic that condonation of delay is a matter of discretion of the Court. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the Court observed (para 9 of AIR): “It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But is a different matter when the first Court refused to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.” 9. The right to appeal is a statutory right. The learned Trial Judge rightly observed that the right of the parties in immovable property is a valuable right and the Courts should take liberal view in rejecting the technical view while examining the application seeking condonotion of delay. 10. I find no infirmity in the impugned order and accordingly, the writ petition is dismissed.