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2022 DIGILAW 377 (CHH)

Samta Sahakari Grih Nirman Samiti v. Lalit Kumar Somani S/o Gaurishankar Somani

2022-09-02

P.SAM KOSHY

body2022
ORDER : 1. Heard on I.A. No. 1 - Application under Section 5 of the Limitation Act for condonation of delay occurred in the filing of the present Appeal. 2. The present is a Defendant No. 2's First Appeal assailing the Judgment and Decree dated 31.1.2010 passed by the 10th Additional District Judge, Raipur, in Civil Suit No. 06-A/2006. 3. The present Appeal has been filed with a delay of 3100 days. It would be relevant at this juncture to take note of the relevant contents of the I.A. No. 1, which for ready reference are being reproduced herein under: “2. That the learned Trial Court has partly decreed the Suit and ordered to allot the plot area 4,000 Sq. Ft. or in case of fail to allot the plot refund the amount of Rs. 600/- per Sq. Ft. with 2% interest per month to the Plaintiff, that the Defendant No. 2 has ready to comply the Judgment and Decree passed by the learned Trial Court and also ready to plot area 4,000 Sq. Ft. to the Plaintiff/Respondent No. 1 but the Plaintiff has refused to accept the offer of the Appellant/Defendant No. 2 and demanded Rs. 600/- per Sq. Ft. from the date of filing of the Civil Suit, that the Appellant Society is not in position to refund the huge amount demanded by the Plaintiff though the Society is ready to allot plot 4000 Sq. Ft. to the Plaintiff in other area (Kota Colony), the copy of proposal given by the Appellant Society is being annexed as per Annexure A-2. 3. That the learned Executing Court has issued possession warrant against the Appellant therefore the Appellant has filed the instant Appeal against the Judgment and Decree dated 13.1.2010 after lapse of 3100 days, that the delay in filing of Appeal is bonafide and unintentional.” 4. The Respondents No. 1 and 2 i.e. the Plaintiffs had filed before the learned Court below a Civil Suit for possession and permanent injunction against the Defendant No. 2 i.e. the present Appellant. The claim of the Plaintiffs was that the Plot No. 322 under the Defendant No. 2 has been wrongly retained by the Defendant No. 3 in spite of the allotment of the Defendant No. 3 having been cancelled and the allotment of the said Plot No. 322 being made in favour of the Plaintiffs. 5. The claim of the Plaintiffs was that the Plot No. 322 under the Defendant No. 2 has been wrongly retained by the Defendant No. 3 in spite of the allotment of the Defendant No. 3 having been cancelled and the allotment of the said Plot No. 322 being made in favour of the Plaintiffs. 5. The learned Court below while partly allowing the said Civil Suit ordered in the following terms: ^^vr% oknhx.k dk nkok Lohdkj dj fuEukuqlkj vkKfIr ikfjr dh tkrh gS%& ¼1½ Áfroknhx.k Øekad&2 oknhx.k dks fu.kZ; fnukad ls nks ekg ds vanj ;fn miyC/k gks rks Hkw[k.M Øaekd&322 ds vkdkj dk vFkkZr 4]000 oxZQqV vkdkj dk Hkw[kaM mUgsa fof/kor Ánku djsa vFkok 4]000 oxZQqV ds fglkc ls Áfr oxZQqV 600@& :i;s dh nj ls jkf'k Ánku djsa vkSj mDr jkf'k in nkok ÁLrqfr fnukad ls olwyh fnukad rd 2 Áfr'kr ekfld dh nj ls lk/kkj.k C;kt Ánku djsaA 2- Áfroknh Øekad&2 Lo;a dk ,oa oknhx.k dk oknO;; ogu djsa] Áfroknh Øekad&3 viuk Lo;a dk oknO;; ogu djsA** 6. A point to be considered at this juncture is that it is not the case where the Appellant/Defendant No. 2 has been proceeded ex-parte. The impugned Judgment and Decree is a bipartite Order. The Appellant/Defendant No. 2 were fully aware of the impugned Judgment and Decree passed by the learned Court below. They were also represented by a Counsel before the learned Court below. Therefore, it cannot be also presumed that they were not aware of the limitation of the filing of appeal. 7. Down the line, the Plaintiffs initiated execution proceeding against the Defendants and it is in the course of the execution proceeding that the instant Appeal has now been filed by Defendant No. 2 with a delay of more than 3100 days. 8. As has been reproduced in the preceding paragraph, the reason showing the delay in the application for condonation of delay was that when possession warrant having been issued by the Executing Court and further that the Appellant/Defendant No. 2 not having financial capability of honouring the second part of the Judgment and Decree whereby the learned Court below has held that in the alternative if the Defendant No. 2 was not in a position to offer 4000 Sq. Ft. of land to the Plaintiffs, they should be compensated by paying Rs. 600/- per Sq. Ft. for the 4000 Sq. Ft. Ft. of land to the Plaintiffs, they should be compensated by paying Rs. 600/- per Sq. Ft. for the 4000 Sq. Ft. of land with 2% monthly interest, that the Appellant/ Defendant No. 2 thought of filing the Appeal. 9. Learned Counsel for Appellant/Defendant No. 2 submits that even otherwise they have a strong case as the impugned Judgment and Decree is per se illegal and suffers from various illegalities and under the said circumstances the delay may be condoned. In support of his contentions, he has relied upon C.K. Prahalada and Others vs. State of Karnataka and Others, AIR 2009 SC (Supp.) 381 and Union of India vs. Giani, AIR 2011 SC 977 . 10. From the submissions made by learned Counsel for Appellant/ Defendant No. 2, it clearly reflects that in principle the Appellant/Defendant No. 2 have accepted to comply with the Judgment and Decree so far as the first part of the same is concerned. That subsequent to the Judgment and Decree was passed, the Appellant/Defendant No. 2 is said to have also made an offer to the Plaintiffs to give them 4,050 Sq. Ft. of land. This perhaps the Plaintiffs have not accepted and they have been insisting upon the payment of compensation or, in the alternative, allotment of the same Plot i.e. Plot No. 322 which is the suit land. 11. As has been held earlier, the plain reading of I.A. No. 1 would clearly give an indication that it was not the case where the Appellant/Defendant No. 2 were not aware of the Judgment and Decree or that they were not aware of the period of limitation within which the Judgment and Decree was to be assailed before the Appellate forum. In other words, the Appellant/ Defendant No. 2 with wide open eyes have accepted the impugned Judgment and Decree without any further challenge to it. In fact, if the submissions of the Appellant/Defendant No. 2 is to be accepted, they have principally accepted the impugned Judgment and Decree so far as the compliance of the first part of the same is concerned. 12. If that be so, the Appellant/Defendant No. 2 at a much belated stage of more than 3,100 days cannot be permitted to turn around and then to challenge the impugned Judgment and Decree passed by the learned Court below. 12. If that be so, the Appellant/Defendant No. 2 at a much belated stage of more than 3,100 days cannot be permitted to turn around and then to challenge the impugned Judgment and Decree passed by the learned Court below. Moreover, according to the Appellant/ Defendant No. 2, they themselves have already made an offer to the Plaintiffs to give them 4,050 Sq. Ft. of land pursuant to the impugned Judgment and Decree. 13. As regards the two Judgments cited by learned Counsel for Appellant/Defendant No. 2 is concerned, the plain reading of the same would apparently make it clear that those are the cases where the Appellants therein came in knowledge of the Judgment and Decree at a belated stage and where the Judgment passed by the concerned Trial Court was having various flaws and under the circumstances the Hon'ble Supreme Court had condoned the delay. However, in the instant case, such is not the situation. The Appellant/Defendant No. 2 had fully participated in the trial before the learned Court below. They were well aware of the impugned Judgment and Decree passed and to a great extent they have also accepted the compliance of the first part of the Judgment and Decree. It is only thereafter when the Plaintiffs have gone to the Execution Court that the Appellant/Defendant No. 2 thought of challenging the impugned Judgment and Decree. Thus, the two Judgments cited by learned Counsel for Appellant/Defendant No. 2 are distinguishable on facts itself. No case for allowing the I.A. No. 1 as such is made out. 14. Recently, the Hon'ble Supreme Court vide Judgment dated 16.12.2021 in Civil Appeal No. 7696 of 2021, Majji Sannemma @ Sanyasirao vs. Reddy Sridevi, dealing with the similar situation, has held as under: “7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under: 7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under: “In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna vs. Chattappan, (1890) 13 J.L.R. (Mad.) 269 “s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause’ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.” 7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously. 7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under: “The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace.” An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. 7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under: “The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as “statutes of peace.” An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim “interest reipublicae ut sit finis litium” that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.” 7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. 7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights.” 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and considering the averments in the application for condonation of delay, we are of the opinion that as such no explanation much less a sufficient or a satisfactory explanation had been offered by respondent Nos. 1 and 2 herein-appellants before the High Court for condonation of huge delay of 1011 days in preferring the Second Appeal. The High Court is not at all justified in exercising its discretion to condone such a huge delay. The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane. Therefore, the High Court has erred in condoning the huge delay of 1011 days in preferring the appeal by respondent Nos. 1 and 2 herein-original defendants. Impugned order passed by the High Court is unsustainable both, on law as well as on facts.” 15. In view of the above given facts and circumstances, the I.A. No. 1 deserves to be and is accordingly rejected. As a consequence, the First Appeal itself stands dismissed being barred by limitation. 16. However, it is made clear that the Appellant/Defendant No. 2 would not be precluded from availing such other legal remedies available to them against the Orders arising out of the Execution Court.