RAHEEM SHAH & ANR versus GOVIND SINGH & ORS.

[2023] 10 S.C.R. 913 : 2023 INSC 651

RAHEEM SHAH & ANR.

GOVIND SINGH & ORS.

(Civil Appeal No. 4628 of 2023)

JULY 24, 2023

[A. S. BOPANNA AND BELA M. TRIVEDI, JJ.]

Delay – Condonation of – Suit filed by Respondent No.1 wasdecreed by the trial court – Appellants-defendants No.1 and 2 inthe suit filed appeal, dismissed by the lower Appellate Court on theground of limitation – Second Appeal filed by the appellants wasalso dismissed by the High Court – Held: Since the contention inthe appeal before the lower Appellate Court was that the judgmentwas not in the knowledge of the appellants, that aspect of the matterwas required to be kept in view by the lower Appellate Court as theappellants in fact had not taken effective part except filing writtenstatement – When there was delay of only 52 days in filing the appealand furthermore when the parties were litigating with regard to theright over immovable properties, the substantial rights were to bedecided between the parties – The very manner in which the lowerAppellate Court dismissed the appeal on the ground of delay whenthe delay was not inordinate is not justified – High Court also notjustified in dismissing the appeal only on the ground that there wasno question of law – Judgments passed by the High Court and thelower Appellate Court, set aside – Delay in filing the appeal beforethe lower Appellate Court condoned, appeal restored to its file –Code of Civil Procedure, 1908 – s.96 – Limitation Act, 1963 – s.5 –Practice and Procedure.

Collector, Land Acquisition, Anantnag & Anr. v. Mst.Katiji & Ors. (1987) 2 SCC 107 : [1987] 2 SCR 387 –relied on.

Case Law Reference

[1987] 2 SCR 387relied onPara 4CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4628of 2023.

AFrom the Judgment and Order dated 16.04.2015 of the High Courtof Madhya Pradesh, Principal Seat at Jabalpur in SA No. 1185 of 2010.

Vikas Upadhyay, Nitin Gaur, Kaustubh Anshuraj, Kuber Boddh,Arjun Singh Tomar, Ms. Ankita Kashyap, Advs. for the Appellants.

Abhishek Vikas, Anshuman Shrivastava, Abhijeet Shrivastava,BAbhishek Sharma, Advs. for the Respondents.

JUDGMENT

The following Judgment of the Court was delivered:

Leave granted.C1. Heard learned counsel for the parties and perused the appealpapers.

2. Respondent No.1 herein is the plaintiff in the original suit bearingCivil Suit No.3 A/02. The suit was decreed by the trial court through itsjudgment dated 01.10.2005. The appellants herein who were theDdefendants No. 1 and 2 in the suit filed Regular First Appeal underSection 96 of the Civil Procedure Code assailing the said judgment. Sincethere was delay of 52 days in filing the appeal, an application underSection 5 of the Limitation Act was filed seeking condonation of delay.The lower Appellate Court through its judgment dated 08.10.2010 hadEdismissed the appeal bearing Civil Appeal No.35A/2005 on the groundof limitation holding that the delay has not been properly explained andhad consequently dismissed the appeal. Against the said judgment, theappellants were before the High Court of Madhya Pradesh in SecondAppeal bearing No.1185/2010. The Second Appeal has been dismissedby the High Court through its judgment dated 16.04.2015 on the groundFthat there is no question of law for consideration.3. It is in that light, the appellants are before this Court in thisappeal. At the outset, having taken note that the contention in the appealbefore the lower Appellate Court was that the judgment was not in theknowledge of the appellants herein, that aspect of the matter was requiredGto be kept in view by the lower Appellate Court since the appellants infact had not taken effective part except filing written statement. Whenthere was delay of only 52 days in filing the appeal and furthermorewhen the parties were litigating with regard to the right over immovableproperties, the substantial rights were to be decided between the parties.HThe delay could have been condoned and the appeal could have beendecided on merits.

4. This Court in the case of Collector, Land Acquisition, Anantnag& Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107 has held ashereunder:

“The legislature has conferred the power to condone delay byenacting Section 5 of the Indian Limitation Act of 1963 in order toenable the courts to do substantial justice to parties by disposingof matters on ‘merits’. The expression ‘sufficient cause’ employedby the legislature is adequately elastic to enable the courts to applythe law in meaningful manner which subserves the ends ofjustice-that being the life-purpose for the existence of the institutionof courts. It is common knowledge that this Court has been makinga justifiably liberal approach in matters instituted in this Court.But the message does not appear to have percolated down to allthe other courts in the hierarchy. And such liberal approach isadopted on principle as it is realized that:

1. Ordinarily litigant does not stand to benefit by lodging anappeal late.

2. Refusing to condone delay can result in meritorious matterbeing thrown out at the very threshold and cause of justicebeing defeated. As against this when delay is condoned thehighest that can happen is that cause would be decided onmerits after hearing the parties.

3. “Every day’s delay must be explained” does not mean thata pedantic approach should be made. Why not every hour’sdelay, every second’s delay ? The doctrine must be applied ina rational common sense pragmatic manner.

4. When substantial justice and technical considerations arepitted against each other, cause of substantial justice deservesto be preferred for the other side cannot claim to have vestedright in injustice being done because of non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately,or on account of culpable negligence, or on account of malafides. litigant does not stand to benefit by resorting to delay.In fact he runs serious risk.

6. It must be grasped that judiciary is respected not on accountof its power to legalize injustice on technical grounds but

because it is capable of removing injustice and is expected todo so.

Making justice-oriented approach from this perspective,there was sufficient cause for condoning the delay in the institutionof the appeal.”

5. The above decision expressing the intention of justice orientedapproach percolating down to all the courts was rendered nearly threedecades ago but unfortunately the case on hand demonstrates thepervading insensitive approach, which apart from continuing the agonyof the litigants concerned has also unnecessarily burdened the judicialhierarchy which after going through the entire process will have to setthe clock back, at this distant point in time and prolong their agony. Ifonly the court concerned had been sensitive to the justice orientedapproach rather than the iron- cast technical approach, the litigationbetween the parties probably would have come to an end much earlierafter decision on the merits of their rival contention.

6. If that be the position, the very manner in which the lowerAppellate Court has dismissed the appeal on the ground of delay whenthe delay was not inordinate is not justified and the High Court was alsonot justified in dismissing the appeal only on the ground that there wasno question of law.

7. Hence, the judgment dated 16.04.2015 passed by the High Courtas also the judgment dated 08.10.2010 passed by the lower AppellateCourt are set aside. The delay in filing the appeal before the lowerAppellate Court is condoned. The Civil Appeal No. 35A/2005 is restoredto the file of the lower Appellate Court i.e. First Additional District Judge,Nasrullaganj, District Sehorr, M.P. The parties shall put forth theircontentions on merits. All contentions are left open.

8. The parties shall appear before the lower Appellate Courtwithout issuance of fresh notice/summons on 23.08.2023 at 11.00 A.Mas the first date for appearance. The lower Appellate Court mayGthereafter regulate its proceedings and dispose of the matter asexpeditiously as possible on its merits and in accordance law.

9. The appeal is, accordingly, disposed of.

10. Pending application(s) shall also stand disposed of.

Divya Pandey