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2025 DIGILAW 1689 (RAJ)

Prabhu Lal Verma S/o Shri Devi Lal v. Khusiram S/o Shri Durga Lal

2025-10-30

SUDESH BANSAL

body2025
JUDGMENT : SUDESH BANSAL, J. 1. Heard counsel for appellants on the application u/s. 5 of the Limitation Act, seeking condonation of delay of 361 days in filing present civil second appeal. 2. It has inter alia been stated that in the application that the present second appeal has been filed against the final order dated 13.01.2022 passed by Additional District Judge, Nainwa, District Bundi, dismissing appellants’ first appeal on the ground of limitation. It has been stated that relevant papers to file the second appeal were handed over to the then Advocate Sh. Sanjay Sharma, but later on, he passed away, and that fact could not come to the knowledge of appellants. When they inquired about filing of second appeal and came to know the fact of death of their counsel, they engaged another counsel and filed this second appeal. The application u/s. 5 of the Limitation Act, is supported with the affidavit. 3. The Hon’ble Supreme Court in case of N. Balakrishnan v. M. Krishnamurthy , (1998) 7 SCC 123 has held that length of delay is not material but the reason of delay must be seen and word “sufficient cause” should be construed liberally. In case of Dr. Yashwantrao Bhaskarrao Deshmukh v. Raghunath Kisan Saindane , (2022) 16 SCC 572 , the Hon’ble Supreme Court condoned the delay of 650 days in filing second appeal, taking a lenient view in given facts and circumstances, where the appellant was contesting the litigation for 17 years to contest a civil suit for specific performance and when the suit was decreed by the first Appellate Court, he filed second appeal, which was dismissed on the ground of delay of 650 days. The Apex Court held that delay in filing second appeal, occurred due to lack of knowledge of decision of First Appeal. 4. Considering the reasons assigned by the appellants, seeking to condone the delay, and in view of the fact that there appears no malafides on the part of appellants nor any deliberate & willful negligence appears on the part of appellants, for not filling civil second appeal within time, in the interest of justice, this Court deems it just and proper to condoned the delay. Accordingly, the application u/s 5 of Limitation Act stands allowed. Let second appeal be considered on merits. 5. Heard counsel for appellants on the second appeal. 6. Accordingly, the application u/s 5 of Limitation Act stands allowed. Let second appeal be considered on merits. 5. Heard counsel for appellants on the second appeal. 6. Succinctly stated facts of case, as culled out from the record are that appellants’ father Sh. Devi Lal instituted a civil suit in the year 1992 claiming his right and possession over the suit property of agricultural land of Khasra No.2112 measuring 6 biswa situated at Village Bansi stating inter alia that same was purchased by him from one Rugha 25 years ago against sale consideration of Rs.80/- and after his death, his adopted son Chotya (defendant No.1) confirmed sale of suit property in his favour by executing a document dated 28.01.1981. It was averred that later on, Chotya (defendant No.1) executed a sale deed dated 19.05.1992 in favour of defendant No.2-Ghasi Lal, though the plaintiff-Devi Lal was in actual possession over the suit property, hence, he filed a civil suit praying to cancel/ declare the sale deed dated 19.05.1992 as null & void, so also to direct defendant No.1 to execute a registered sale deed, in his favour. 7. It appears that in the civil suit, defendants despite service did not turn up, hence suit was decided ex-parte, vide judgment dated 07.04.1994. Plaintiff’s evidence was recorded. The trial Court being Court of Munsif & Judicial Magistrate First Class, Nainwa, District Bundi, on appreciation of plaintiff’s evidence, affirmed the plaintiff’s possession over the property in question as lawful, and held that same was sold to him by Rugha, and sale in favour of plaintiff was confirmed by adopted son of Rugha i.e. defendant No.1. With such fact findings, the subsequent sale deed dated 19.05.1992 in favour of defendant No.2, was declared as null & void qua right of plaintiff, but prayer to direct defendant No.1 to execute registered sale deed in his favour was denied. 8. It appears that plaintiff-Devi Lal did not pursue his prayer seeking direction against defendant No.1 to execute sale deed in his favour and not preferred any first appeal against the judgment & decree dated 07.04.1994, in respect of denial of his prayer to direct defendant No.1 to execute registered sale deed in his favour. Though, it appears, the defendants filed an application under Order 9 Rule 13 CPC to set aside the decree, but later on same was withdrawn by them in the year 2012. 9. Though, it appears, the defendants filed an application under Order 9 Rule 13 CPC to set aside the decree, but later on same was withdrawn by them in the year 2012. 9. It appears that in the meantime, original plaintiff Devi Lal passed away in the year 2005 and later on, his natural successors/ present appellants, filed first appeal on 07.12.2021 against judgment & decree dated 07.04.1994. This First Appeal was delayed by about 27 years. Appellants sought to condone the delay of 27 years stating inter alia that the original record of the suit was missing and their father has passed away after passing the judgment impugned. This reason was not found genuine and sufficient by the first Appellate Court to condone the inordinate and exorbitant delay of about 27 years. Accordingly, the first appeal was dismissed being hopelessly barred by limitation vide order dated 13.01.2022, whereagainst instant second appeal has been filed. 10. There is no quarrel about the established principle of law that condonation of delay is within discretion of the Court and while construing the word “Sufficient Cause”, a liberal approach should be adopted and unless a callous, grave negligent and malafide conduct of the party is not writ large, as a normal rule, delay should be condoned. 11. Applying the afore-stated guidelines and parameters of law for condoning the delay of 27 years in filing the first appeal by appellants, the first Appellate Court has observed that the cause assigned for seeking condonation of huge delay of 27 years is neither sufficient nor appears to be just and proper. Indisputably, original plaintiff- Devi Lal after passing the impugned judgment dated 07.04.1994, survived till 2005. Further, in the proceedings under Order 9 Rule 13 CPC, initiated by and on behalf of defendants, legal representatives of plaintiff (present appellants herein) have been substituted and proceedings under Order 9 Rule 13 CPC were withdrawn in the year 2012. Thus, the appellants were well aware about the impugned judgment. The factum of missing of original file, even if taken into consideration, is not any new factor as same happened during proceedings under Order 9 Rule 13 CPC. Firstly, there is no reason at all for condoning the delay for not filing first appeal from 1994 to 2005 by plaintiff. Secondly, natural heirs of plaintiff could have filed first appeal thereafter, but they chose to file first appeal on 07.12.2021. Firstly, there is no reason at all for condoning the delay for not filing first appeal from 1994 to 2005 by plaintiff. Secondly, natural heirs of plaintiff could have filed first appeal thereafter, but they chose to file first appeal on 07.12.2021. There is no reasonable explanation what to say of assigned a sufficient cause. Lenient view and liberal construction to construe the sufficient cause, can not be taken to give a go by to the Law of Limitation. At-least, a litigation which has attained finality may not be allowed to revive at the whims of a party after years together. A party to lis must be aware for his rights, whatsoever may be to seek remedy in law within prescribed limitation and if not, then at least within reasonable period of time. 12. In the fact and circumstances of case in hand, appellants’ attitude and conduct has been extremely callous and negligent. The prayer by original plaintiff for registration of sale deed, based on document of agreement dated 28.01.1981, was made in the year 1992 and when such prayer was denied vide judgment impugned dated 07.04.1994, he did not bother to pursue his prayer for years together. Now, pressing of such prayer by way of filing first appeal after about 27 years, obviously not only make his right weak on merits, but also does not touch the conscience of the Court. Therefore, it cannot be held that First Appellate Court committed any illegality, perversity or jurisdictional error in not condoning delay of 27 years and dismissing the First Appeal as barred by limitation vide impugned order 13.12.2022. 13. Counsel for appellants could not point out involvement of any substantial question of law in this Second Appeal, except making a prayer for condoning the delay of 27 years in filing the First Appeal. The first Appellate Court, in its discretion and exercise of jurisdiction, has considered the issue of delay in accordance with law, which does not warrant any interference by this Court, nor the impugned order give rise to any substantial question of law which is sine qua non to entertain the Second Appeal u/s. 100 of CPC. 14. As a final result, the present Civil Second Appeal is hereby dismissed. No costs. 15. Stay application and pending application(s), if any, also stand disposed of.