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2018 DIGILAW 1743 (ALL)

DIGGAJ PANDEY v. VIMLENDRA MOHAN PRATAP MISHRA

2018-08-08

ATTAU RAHMAN MASOODI

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JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard Ms. Saima Khan, learned counsel for the petitioners and Sri Madan Mohan Pandey, learned counsel who has filed vakalatnama on behalf of the opposite parties. 2. This petition filed under Article 227 of the Constitution of India has questioned the correctness of the order passed by the appellate Court below on 7.4.2018 whereby the application filed by opposite parties registered as misc. case No. 335/17 seeking condonation of delay in filing the civil appeal arising out of the judgement and decree dated 24.1.2017 was allowed on payment of a cost of Rs. 300/-. 3. Learned counsel for the petitioners has argued that there was absolutely no justifiable reason pointed out in the application filed by the opposite parties (appellants) under Section 5 of the Limitation Act hence in absence of any plausible reason assigned by the opposite parties before the Court below, a liberal view on the statutory bar could not be taken by the appellate Court in condoning the delay. 4. The second submission put forth by learned counsel for the petitioners is to the effect that two specific objections were raised by the petitioners, namely, (a) that the notice to the counsel who participated in the hearing of the case on 24.1.2017 was a sufficient notice to the plaintiff; and (b) in absence of any explanation set out by the opposite parties in support of the date of knowledge before the appellate Court below, the application for condonation of delay ought not to have been allowed. 5. The petitioners have also averred in paragraph 4 of the objections filed by them that the attorneys representing the opposite parties had also sufficient knowledge of the proceedings before the Court below who had filed affidavits from time to time and thus, knowledge to the said attorneys of the proceedings having culminated on 24.1.2017, would amount to a sufficient knowledge of the decree to the opposite parties who were plaintiffs in the suit. 6. Refuting the submissions put forth by learned counsel for the petitioners, Sri Madan Mohan Pandey, learned counsel for the opposite parties has argued that once the application for condonation of delay has been allowed by the competent Court, the discretion so exercised is incapable of being interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Essentially the exercise of discretion by the competent Court on the aspect of limitation is argued to be an order beyond the scope of judicial review in exercise of powers under Article 227 of the Constitution of India for this Court in such a case would not exercise the powers akin to appellate or revisional jurisdiction. 7. Regard being had to the submissions put forth by Sri Madan Mohan Pandey on behalf of the opposite parties, this Court would not dispute the position of law put forth for the reason that a party becoming remediless on account of dismissal of application for condonation of delay, may suffer a severe loss to his substantive rights and it is on this account that a liberal view has to be adopted by the Courts of law to condone the delay in ordinary circumstances. 8. The case at hand is not the one where the opposite parties had been rendered remediless or would become remediless upon a lawful consideration of the objections which had been raised by the petitioners. The objections raised by a party within the scope of law are bound to be considered in the light of attending circumstances and the Courts would discourage an equitable consideration or a liberal consideration of the prayer for delay condonation, which otherwise is statutorily barred for the protection of valuable rights of a contesting party. 9. In the present case, the petitioners have been allotted a retail outlet (Petrol Pump) and it is at the stage of commissioning of the outlet that a suit for ejectment has come to be filed against them. After exchange of pleadings between the parties, the issues were framed and one of the issues related to the bar of jurisdiction exercisable by the Civil Court and this objection was raised on the strength of Section 331 of U.P. Zamindari Abolition & Land Reforms Act. The objection raised by the petitioners was appreciated by the trial Court and it has been found that the suit being barred by the provisions of Section 331 of the Act would rather lie before the revenue Court. The opposite parties had a right to file a regular civil appeal before the Court below within the period of limitation i.e. thirty days from the date of decree. The opposite parties had a right to file a regular civil appeal before the Court below within the period of limitation i.e. thirty days from the date of decree. This period of one month from the date of decree, according to the petitioners, stood lapsed some time in the month of February, 2017. 10. The opposite parties allege to have acquired knowledge of the decree on 22.5.2017, which apparently is not traceable to any definite source of knowledge. Computing the period of limitation with effect from the alleged date of knowledge i.e. 22.5.2017, the appeal filed on 31.5.2017 is within limitation. However, if the period of limitation is computed from the date of decree i.e. 24.1.2017, it shall be barred by limitation nearly by two months. Condonation of nearly two months’ delay is thus, a bone of contention between the parties on the strength of justification assigned in the application as controverted in the objections raised by the petitioners in paragraph 2 and 4. 11. The essence of the objections has already been pointed out hereinabove. The submission put forth by the petitioner’s counsel that knowledge to the counsel was bound to be construed as knowledge to the client or knowledge to an attorney would equally amount to sufficient knowledge to the party whom the attorney represents, does have force but looking to the fact of two months condonable delay in the present case where suit was filed within limitation, it cannot be said that condonation of such a delay in exercise of discretionary powers by the appellate Court below would not lie within its discretion. The object of law is to determine the rights of parties after due trial within the scope of remedies available to them. The remedy of appeal is a statutory remedy and the law of limitation advances the cause of justice subject, however, that an indolent litigant has to be penalized adequately for approaching the Court belatedly. The Courts of law have to be vigilant while imposing cost in such matters and in the eventuality of adopting a liberal view in the cases where injury caused to the other party is severe, a paltry cost may not serve the purpose of law as the parties may adopt the course of delay as a matter of routine. 12. The Courts of law have to be vigilant while imposing cost in such matters and in the eventuality of adopting a liberal view in the cases where injury caused to the other party is severe, a paltry cost may not serve the purpose of law as the parties may adopt the course of delay as a matter of routine. 12. This Court, therefore, does not approve of the quantification of cost imposed by the Court below to the tune of Rs. 300/- which this Court would quantify at a sum of Rs. 25000/- payable by the opposite parties within a period of one week from today. The impugned order dated 7.4.2018 shall stand modified to this extent. 13. The petitioner shall make an application for fixation of date before the Court below within a period of ten days from today. Since both the parties are represented before this Court and they undertake to appear before the appellate Court below on 23.8.2018, the pending appeal shall accordingly be listed on 23.8.2018 for hearing and with due participation of the parties, the same shall be decided in the light of evidence available on record. 14. In case for any reason the Court below is not in a position to decide the matter on 23.8.2018, the appeal in any case, shall be decided on the issue of jurisdiction not later than a period of two weeks thereafter. The parties shall strictly adhere to the time schedule fixed by this Court so that the pending appeal does not linger on any further giving rise to a cause for litigating further on such an aspect. 15. The petition is allowed in part with no order as to cost.