Court No. - 53
Case :- SECOND APPEAL No. - 905 of 2019 Appellant :- Bhopal Singh (Deceased) And 7 Others Respondent :- Nagar Palika Parishad And Another Counsel for Appellant :- Udai Chandani
Hon'ble Jayant Banerji,J.
Heard Shri Udai Chandani, learned counsel for the plaintiff- appellants.
This second appeal has been filed against the judgment dated 6 May 2019 and decree dated 10 May 2019 passed by the Additional District & Sessions Judge, Court No.6, Ghaziabad in Civil Misc. Case No.857 of 2017 (Bhopal Singh & Ors. vs. Nagar Palika Parishad & Anr.) as well as the judgment and decree dated 28 January 2015 and 6 February 2015 respectively passed by the Judge, Small Causes Court/Additional Civil Judge (Senior Division), Ghaziabad in Original Suit No.1604 of 2008 (Bhopal Singh vs. Nagar Palika Parishad & Anr.).
A suit was filed by the plaintiff-appellants seeking a decree of injunction, which was registered as Original Suit No.1604 of 2008 on 20 September 2008. All the five plaintiffs had signed and verified the plaint. A written statement was filed by the Nagar Palika Parishad, Moradnagar, by means of which, while denying the allegations made in the plaint, it was stated that the plaintiffs had encroached upon the land of the defendants in a wholly unauthorised manner and their possession was totally illegal. By means of a judgment and order dated 28 January 2015, the suit of the plaintiff-appellants was dismissed.
Challenging the aforesaid judgment, an appeal was sought to be filed by the plaintiff-appellants but, in view of the delay, the same was filed alongwith an application under Section 5 of the Limitation Act for condonation of delay, which came to be registered as Civil Misc. Case No.857 of 2017. By means of an order dated 6 May 2019, the lower appellate court dismissed the aforesaid application under Section 5 of the Limitation Act on the ground that the applicant-appellants had knowledge of the judgment and decree of the trial court since the beginning but they have purposely filed the appeal after the time limited has expired. The lower appellate court found that the suit was dismissed on 28 January 2015 and the plaintiff no.1, Bhopal Singh, died on 1 March 2017. The appeal was filed after a period of two years and 180 days. The lower appellate court observed that no clarification or explanation was forthcoming from the plaintiffs regarding the reason of not filing the appeal within time either before or after the death of plaintiff no.1- Bhopal Singh.
Admittedly, the judgment of the trial court was delivered on 28 January 2015 and all the five plaintiffs were being represented by their Advocate before the trial court. It is further admitted that the plaintiff no.1, Bhopal Singh, died on 1 March 2017. There is no explanation proffered in the application under Section 5 of the Limitation Act as to why no appeal was filed from the date of decree of the suit till the death of the plaintiff no.1. Even after the death of the plaintiff no.1, Bhopal Singh, the reason ascribed by the plaintiff-appellants for the delay was that they were grief stricken and they did not know about the developments of the case and so they did not file an appeal. The explanation submitted by the plaintiff-appellants in their application under Section 5 of the Limitation Act for the delay in filing of the appeal pertains to the period after the death of the plaintiff no.1, Bhopal Singh, on 1 March 2017, which is not satisfactory as has been correctly held by the lower appellate court. Moreover, there is no explanation whatsoever why Bhopal Singh or the other plaintiffs chose not to file the appeal from the date of dismissal of the suit till the date of death of the plaintiff no.1.
As such, the order passed by the lower appellate court dated 6 May 2019 does not suffer from any infirmity and illegality. No substantial question of law, including the ones that have been raised in the memorandum of appeal, exist.
The appeal is, accordingly, dismissed.
Order Date :- 30.9.2019 SK (Jayant Banerji, J.)