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Madhya Pradesh High Court · body

2017 DIGILAW 536 (MP)

Ram Sewak Prajapati v. Shiv Kumar Yadav

2017-04-20

VIJAY KUMAR SHUKLA

body2017
JUDGMENT : Heard on admission. The appeal is admitted for hearing on the following substantial question of law: “Whether the Lower Appellate Court has erred while dismissing the appeal is barred by limitation.” With the consent of the parties, the appeal is also heard finally. In the instant appeal filed under section 100 of the Code of Civil Procedure (hereinafter referred to as CPC), the appellant has challenged the order/decree dated 30-7-2016, passed by First Additional Judge to the Court of 2nd Additional District Judge, Jabalpur, against the judgment and decree dated 28-4-2016, passed by 14th Civil Judge Class-I, Jabalpur, in Civil Suit No. 105-A/2013, whereby the appeal filed by the appellant has been dismissed as ‘time barred’ by rejecting the application filed under section 5 of the Indian Limitation Act, by the Lower Appellate Court and the judgment and decree passed by the trial Court regarding eviction under provisions of section 12(1)(a) of M.P. Accommodation Control Act (hereinafter referred to as the Act) has been affirmed. 2. Brief facts of the present case are that the respondents filed a suit for recovery of rent and eviction of the appellant from the suit house, alleging therein that they are the owners and landlords of the suit house. It was pleaded that the appellant has been irregular in payment of rent. He was in arrears of rent amounting to Rs. 8,000/- upto September, 2011 from November, 2009. The rent is said to be Rs. 350/- per month. 3. Combating the aforesaid allegations, it was pleaded in the written statement by the appellant/defendant that he is not in arrears of rent. He has paid all the rents and according to him, the rent is Rs. 75/- per month. It was also alleged by the respondents that they are not the owners and landlords of the suit house but they are illegally recovering the rent by using muscle powers. It was further alleged that they had tried to dismantle the house and therefore an FIR was also lodged. It was pleaded that he had already spent huge amount for repairing of the suit house. 4. However, after evaluation of oral and documentary evidence, suit for eviction and payment of arrears of rent was decreed by the judgment and decree dated 28-4-2016. 5. It was pleaded that he had already spent huge amount for repairing of the suit house. 4. However, after evaluation of oral and documentary evidence, suit for eviction and payment of arrears of rent was decreed by the judgment and decree dated 28-4-2016. 5. Being aggrieved by the aforesaid judgment and decree, appeal was filed but there was delay, therefore, an application under section 5 of the Indian Limitation Act was filed. However, the Lower Appellate Court rejected the application under section 5 of the Limitation Act and consequently the appeal filed under section 96 of Civil Procedure Code was dismissed as time barred, hence the present appeal. 6. Learned counsel for the appellant submitted that the dismissal of appeal as barred by limitation is erroneous and is contrary to the provisions of the Indian Limitation Act, and also the law laid down by the Apex Court and this Court and therefore, the substantial question of law as mentioned above arises for consideration as under: “Whether the Lower Appellate Court has erred while dismissing the appeal is barred by limitation.” 7. Learned counsel for the appellant submitted that there was hardly delay of 3 days in filing the appeal and therefore, instead of adopting such hyper technical and strict view in the matter of condonation of delay, the Appellate Court ought to have taken liberal view in the matter. 8. Per contra, learned counsel for the respondents stated that the appellant had information about the judgment and decree of the case on 28-4-2016 itself when the same was passed. Despite having the information about the decree, the respondents applied copy of the judgment and decree after expiration of the period of limitation and further the appellant could not explain the period for not filing the appeal immediately after getting the certified copy. Thus, the appellant has failed to make out any case for “sufficient cause” as required under the provisions of section 5 of the Indian Limitation Act and he could not explain each day delay as required under law. Hence there is no illegality in the impugned judgment and decree. 9. Before adverting to the legal provision of law in the field of condonation of delay, it is apposite to refer the provisions of section 5 of the Indian Limitation Act, which is reproduced as under: “5. Extension of prescribed period in certain cases. Hence there is no illegality in the impugned judgment and decree. 9. Before adverting to the legal provision of law in the field of condonation of delay, it is apposite to refer the provisions of section 5 of the Indian Limitation Act, which is reproduced as under: “5. Extension of prescribed period in certain cases. — Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation. — The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” The Apex Court in the case of G. Ramagowda v. Special Land Acquisition Officer, (1988) 2 SCC 142 : AIR 1988 SC 897 held as under: “The expression ‘sufficient cause’ in section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.” Prior to this, the Apex Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 , held that to determine the word ‘sufficient cause’, Courts should adopt a liberal and justice-oriented approach. 10. In the case of State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94 , the same view has been reiterated that a lenient view should have been taken by the Lower Appellate Court. Relying on the same judgment, a Coordinate Bench of this Court in the case of Salikram v. Keshav, 2012 (1) M.P.L.J. 93 : 2012 (1) MPHT 409 , held that the appeal should not have been dismissed merely on technical ground of delay and a liberal view should have been taken. 11. Relying on the same judgment, a Coordinate Bench of this Court in the case of Salikram v. Keshav, 2012 (1) M.P.L.J. 93 : 2012 (1) MPHT 409 , held that the appeal should not have been dismissed merely on technical ground of delay and a liberal view should have been taken. 11. In the case of Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 , the Apex Court held that question of diligence during the period of limitation is not relevant in considering the application under section 5 of the Indian Limitation Act. It becomes relevant only when the question of exercising discretion to condone the delay under section 14 arises. Relevant para-8 is quoted as under: “8. Now, what do the words “within such period” denote? It is possible that the expression, “within such period” may sometimes mean during such period. But the question is: Does the context in which the expression occurs in section 5 justify the said interpretation? If the limitation Act or any other appropriate statute prescribes different periods of limitation either for appeals or applications to which section 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would not be reasonable to require a party to take ‘the necessary action on the very first day after the cause of action accrues. In view of the period of limitation prescribed the party would be entitled to take its time and to file the appeal on any day during the said period and so prime facie it appears unreasonable that when delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed. In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of section 5. The context seems to suggest that “within such period” means within the period which ends with the last day of limitation prescribed. In other words, in all cases falling under section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. The context seems to suggest that “within such period” means within the period which ends with the last day of limitation prescribed. In other words, in all cases falling under section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for-not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression “within such period” means during such period would in our opinion be repugnant in the context. We would accordingly hold that the learned Judicial Commissioner was in error taking the view that the failure of the appellant to account for its non-diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it from praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the party's illness.” 12. In the present case, the Lower Appellate Court has dismissed the application for condonation of delay mainly on the ground that the appellant has not given any reason for not submitting the application for obtaining the certified copy within the limitation and why the certified copy was received on 21-6-2016, when it was already ready on 14-6-2016. The Court has further taken into consideration that the appellant has not mentioned any reason why the appeal was filed on 23-6-2016 when the certified copy was received on 21-6-2016. The Court has further taken into consideration that the appellant has not mentioned any reason why the appeal was filed on 23-6-2016 when the certified copy was received on 21-6-2016. The appellant has made the following averments in the application under section 5 of the Indian Limitation Act, which are reproduced as under:- ^^1- ;g fd vihykFkhZ us ekuuh; Jh vkjŒdsŒ 'kekZ 14oka O;ogkj U;k;k/kh'k ÁFke Js.kh] tcyiqj ds fu.kZ; ,oa fMØh fnukad 28-4-2016 ls nqf[kr gksdj ftyk U;k;ky; egksn; tcyiqj ds le{k vihy varxZr /kkjk 96 ÁLrqr fd;k gSA 2- ;g fd esjs mDr Ádj.k esa 28-4-2016 dks fu.kZ; ,oa fMØh ikfjr dh xbZ gSA ftldh eq>s vius vf/koDrk egksn; ds }kjk 25-5-2016 dks tkudkjh ÁkIr gqbZ Fkh fd esjs fo:} fu.kZ; ,oa fMØh ikfjr dh xbZ gSA 3- ;g fd esjs mijksDr fu.kZ; ,oa fMØh dh udy ÁkIr djus gsrq eSus vius vf/koDrk ds ek/;e ls 30-5-2016 dks vkosnu i= is'k djok;k Fkk rFkk eq>s lR; Áfrfyfi dh udy 21-6-2016 dks ÁkIr gqbZA 4- ;g fd esjs }kjk rhu fnu ds foyac ls le;kof/k i'pkr~ vkosnu i= is'k djok;k FkkA vkSj blh dkj.k ls esjs }kjk rhu fnu ds foyac ls vihy is'k dh xbZ gS ftls foyac ls is'k gqbZ vihy dks {kek fd;k tkuk vko';d gSA 5- ;g fd vkosnu ds leFkZu esa 'kiFk i= layXu gSA** 13. Upon a perusal of the application, it is noted that the judgment and decree was passed on 28-4-2016, the appellant got the information from his Advocate on 25-5-2016. He made an application for obtaining certified copy on 30-5-2016 just after 5 days from the date of getting knowledge of the judgment and decree. Certified copy was received by him on 21-6-2016 through his counsel. In the impugned order, it is stated that the appellant was told to appear on 6-6-2016 but he appeared on 21-6-2016. It is also mentioned that the copy was ready on 14-6-2016. From the sequence of the dates and the facts of the present case, it cannot be said that there was any inordinate and deliberate undue delay in making the application for certified copy of the order and receiving the said copy by the counsel. The affidavit of the appellant shows that he is residing in a remote area of Jabalpur town and certainly it was not possible for him to get information day to day from his counsel. The affidavit of the appellant shows that he is residing in a remote area of Jabalpur town and certainly it was not possible for him to get information day to day from his counsel. The application for obtaining certified copy and the delivery of the copy was done through the counsel and not by him personally. The view of this Court is fortified by the judgment of this Court in the case of Salikram (supra), where it has been held that in the cases of persons residing in remote rural areas and who were not informed by their counsel about obtaining of certified copy of the impugned judgment and decree and the same was made after coming to know through their counsel constitute ‘sufficient cause’ for condoning the delay and a lenient view ought to have been taken by the Court below. Further non-diligence during the period of time taken regarding making application for obtaining certified copy and not receiving the same on the date when he was asked to receive the certified copy cannot be grounds to reject the application under section 5 of Indian Limitation Act as held in the case of Ramlal v. Rewa Coalfields Ltd. (supra). 14. In view of the aforesaid, this appeal is allowed as it is found that the impugned judgment and decree is contrary to the law laid down by the Apex Court and this Court in respect of section 5 of the Indian Limitation Act. The impugned judgment and decree passed by the Lower Appellate Court is set aside. The case is remitted back to the Lower Appellate Court with a request to treat the first appeal of the appellant as within limitation and to hear and decide the same expeditiously preferably within a period of 6 months from the date of production of the certified copy of the judgment and decree passed today. Parties are since represented before this Court, they are directed to remain present before the Lower Appellate Court on 11-5-2017 along with a certified copy of the order passed today. 15. The Registry is directed to send back the records of the Courts below immediately to the Lower Appellate Court for the purpose of hearing of the first appeal. 16. With the aforesaid, the appeal is allowed and finally disposed of.