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2021 DIGILAW 156 (UTT)

Bishan Swaroop v. State of Uttarakhand

2021-03-10

MANOJ KUMAR TIWARI

body2021
ORDER : Manoj Kumar Tiwari, J. 1. This is plaintiffs' petition under Article 227 of the Constitution of India against the order dated 19.09.2007 passed by learned Civil Judge (Junior Division), Rudrapur, whereby their application seeking restoration of the suit, which was dismissed under Order 9, Rule 3, C.P.C., has been rejected. Petitioners have also challenged the order dated 31.10.2017 passed by District Judge, Udham Singh Nagar, in civil revision No. 65 of 2000, whereby the revision filed by them against the trial court's order dated 19.09.2007, too was dismissed. 2. Predecessors-in-interest of the petitioners filed a suit for specific performance, which was registered as Original Suit No. 205 of 1990. The said suit was dismissed for non-prosecution on 21.05.1996. The predecessors-in-interest of the petitioners moved an application for restoration of the suit under Order 9, Rule 4 of C.P.C., which was rejected on 25.01.1997. 3. After a lapse of more than nine years, petitioners again moved an application for restoration of the suit along with a delay condonation application, which was registered as Miscellaneous Civil Case No. 31 of 2006. The delay of nine years was sought to be explained by the petitioners by stating that Sri Dhanpat Rai (father of petitioner Nos. 7 to 9) who was plaintiff No. 2 in the suit had suffered paralytic attack in the year 1991, consequently he was unable to move; likewise Bishambhar Dayal (father of petitioner Nos. 1 to 6) plaintiff No. 1 also suffered paralytic attack in the last week of December, 1996, as a result, the restoration application filed by them, which was numbered as Miscellaneous Case No. 24 of 1996 remained unattended, consequently, the said application was rejected vide order dated 25.01.1997. 4. In the said application, petitioners further stated that Bishambhar Dayal (plaintiff No. 1) had passed away in the year 2003 while Dhanpat Rai (plaintiff No. 2) died in the year 1999, and petitioners had no knowledge about Original Suit No. 205 of 1990 and Miscellaneous Case No. 24 of 1996; they learnt about the said case in September, 2006, when their counsel, appearing before the High Court, informed them that the suit filed by their father has been dismissed on 21.05.1996. 5. 5. The defendant to the suit opposed the delay condonation application and stated that the averments made by the petitioners that Bishambhar Dayal and Dhanpat Rai were seriously ill since 1991 is incorrect and the Medical Certificates produced by petitioners in support of their contention that their father were serious ill, are fabricated. Defendant relied upon one application made by Bishambhar Dayal in the court of Consolidation Officer on 04.06.2002 wherein he had stated that he was not well between 20.03.2001 to 03.06.2002, to belie the case set up by petitioners. Defendant further contended that Bishambhar Dayal had appeared in the court of Consolidation Officer, Kichha on 26.10.1998 and had moved an application and thereafter he had visited the court on 15.03.1999 and 18.10.1999 also. 6. Learned trial court rejected the delay condonation application of the petitioners vide order dated 19.09.2007. Petitioners challenged the said order by filing Civil Revision No. 65 of 2007, which was dismissed by learned District Judge, Udham Singh Nagar vide judgment dated 31.10.2007. Feeling aggrieved by these two orders, petitioners have approached this Court under Article 227 of the Constitution. 7. The order passed by learned trial court is on record as Annexure No. 1 to the writ petition. Learned trial court has rejected the delay condonation application on following two grounds:- (i) The Medical Certificates issued by Dr. P.D. Tiwari, which were relied by the petitioners to prove the factum of illness of their predecessors, are dated 20.03.2001 and 01.06.1998. In the landline telephone number of the doctor, given in the Medical Certificates, digit "2" is prefixed, while as per the information provided by Telecommunication Department, the digit "2" was prefixed in telephone number only w.e.f. 16.11.2002. Thus, learned trial court reached the conclusion that the Medical Certificates were issued after 16.11.2002, but they were ante-dated. (ii) Based on the documentary evidence produced by defendant to the suit, namely, copy of the plaint filed by predecessors-in-interest of petitioners on 02.08.1997, caveat filed by the predecessors of the petitioners on 03.09.1997 before Consolidation Officer, Kichha, copy of the applications made by predecessors-in-interest of the petitioners in the court of Consolidation Officer and the order dated 18.10.1999 passed by Consolidation Officer, Kichha, learned trial court disbelieved the submission made on behalf of the petitioners that their predecessors-in-interest were completely bedridden and unable to move due to paralysis. 8. 8. Heard learned counsel for the respondent and perused the record. 9. Learned trial court has rejected petitioners' delay condonation application by a reasoned order. Section 5 of the Limitation Act, 1963 provides for extension of prescribed period in certain cases. However, such extension can be ordered only when the applicant satisfies the court that he had sufficient cause for not making the application within such period. In other words, condonation of delay in making an application, cannot be claimed as a matter of right and delay cannot be condoned in a routine or casual manner. Before exercising the power available under Section 5 of the Limitation Act, the Court has to satisfy itself that the applicant had some sufficient cause for not filing the application within prescribed time. 10. In the present case, petitioners had set up the plea of immobility of their predecessors-in-interest due to paralytic attack, however, the said plea was rightly disbelieved by learned trial court in view of the evidence that predecessors-in-interest of the petitioners were regularly visiting the courts upto 1999. 11. The Medical Certificates produced by the petitioners to establish factum of illness of their predecessors-in-interest were also rightly disbelieved by learned trial court. It has come on record that in Tehsil Kichha, the digit "2" was prefixed to the landline telephone number w.e.f. 16.11.2002, while the date, mentioned in the Medical Certificates issued by Dr. P.D. Tiwari, is 20.03.2001 and 01.06.1998, however, the telephone number of doctor, mentioned in the Medical Certificates starts with the digit "2", which substantiates the contention made on behalf of the defendants that the Medical Certificates were subsequently procured to create evidence in support of the delay condonation application. 12. In view of the elaborate discussion made by learned trial court on all aspects of the matter, this Court does not find any reason to interfere with orders passed by learned courts below. 13. In such view of the matter, no interference is warranted under Article 227 of the Constitution of India. Accordingly, civil petition fails and is dismissed.