1. This is defective time-barred appeal. Heard learned counsel for the appellant on disposal of application for condonation of delay in filing the present second appeal.
2. Original Suit No. 352/1999 Dinesh Chandra Dubey v. Kripa Shanker Dubey & others, was dismissed by the judgment dated 19.11.2008, of Civil Judge (Junior Division), Naugarh, Siddharthnagar. Agains this judgement of trial court, Civil Appeal No. 109/2008 Dinesh Chandra Dubey v. Kripa Shanker Dubey & others was filed, which was heard and dismissed by judgment dated 31.05.2014 of Additional District Judge, Court No.-2, Siddharthnagar. By this judgment, the findings and judgment of trial court was confirmed.
3. Against the judgment of trial court as well lower appellate court, the memorandum of second appeal was filed by plaintiff-appellant beyond 1 year and 143 days after the lapse of period of limitation. This is supported by application for condonation of delay in filing appeal along with affidavit of plaintiff-appellant. In this affidavit the grounds taken for condonation of delay are mentioned in paras 2 to 5 on affidavit, which are as under:-
"2. That the deponent is very poor and illiterate person and suffering from old age disease from long time.
3. That after some time anyhow on 14.01.2016 he came to Allahabad in "Kumbha Mela" and thereafter contacted to counsel Sri R.P. Srivastava and knowing about legal procedure and after considering material facts the counsel advise him to file second appeal before this Hon'ble Court with delay condonation application.
4. That immediately the deponent came to her home and managed necessary expenses without delay contacted to Sri R.P. Srivastava on 26.01.2016 then he immediately drafted Second Appeal.
5. That there is no deliberate delay or negligence on the part of the deponent for filing the present second appeal, therefore, it is expedient in the interest of justice that this Hon'ble Court may graciously be pleased allow the condonation application, and condone the delay, if any, in filing the present second appeal otherwise the deponent / appellant shall suffer great irreparable loss and injury which can bot be compensated in terms of money."
4. Learned counsel for the appellant contended that no deliberate delay was caused by the appellant in filing the second appeal, when his counsel advised then he had decided to file appeal and filed memorandum of appeal without any unnecessary delay. Such delay is genuine for sufficient reason, therefore, such delay should be condoned.
5. Prima-facie it appears to court that the ground mentioned in delay condonation application and supporting affidavit was not sufficient, therefore, without informing and issuing the notices to the respondents hearing was made on this application and order is being passed.
6. It is nowhere mentioned in application or affidavit that plaintiff was so poor, that he was unable to arrange money/expenses for filing the second appeal within time. The judgment of lower appellate court was passed in May, 2014 and he had knowledge of same from very beginning. It is no where mentioned that plaintiff-appellant was advised by his local / regional counsel of district Siddhartha Nagar not to prefer second appeal. It appears that after the judgment of lower appellate court, the plaintiff-appellant had intended not to further pursue the matter, but when he visited at Allahabad in January, 2016, in "Kumbh Mela" (it appears that it should be "Maagh Mela"), he came in contact new counsel at Allahabad, then he was advised to prefer delayed Second Appeal with delay condondation application. According to the affidavit, he contacted his counsel of Allahabad on 14.01.2016 and 26.01.2016 and then immediately filed appeal on 03.02.2016, thus, there is no ground for inability to arrange money/ expenses for filing the appeal.
7. It is no where mentioned in affidavit or application that applicant-appellant or his counsel had no knowledge of legal provisions of law of limitation. When the appellant had instituted original suit and first appeal within time, then it is expected that he had the knowledge of procedure regarding to law of limitation. Thus, there appears no ground regarding lack of legal knowledge of procedure, wrong advise of counsel or monitory reason for arranging the expenses. In the absences of this reasons, there appears no ground that may explained sufficient explanation for filing delayed memorandum of appeal and condonation of delay and sufficient ground of condonation of delay for the same. In these circumstances, this contention of learned counsel for the appellant is not acceptable that appeal may be admitted for deciding the matter on merit, after condonation of such delay in filing appeal.
8. As stated about the disputes in question relates to property of Abadi between the near relatives and real brothers. The plaintiff-appellant had knowledge from very beginning that he had lost the original suit and first appeal, but he had decided not to prefer appeal for the reasons best known to him. He decided to prefer the appeal when he was so advised by new counsel, who met him in Allahabad during "Mela" period.
9. In Popat and Kotech Property v. State Bank of India Staff Association(2005) 7 SCC 510, Hon'ble Apex Court had held as under:-
"7. The period of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken writ diligence and to prevent oppression. The statute i.e. the Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute bar discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal. (Also see France B. Martins v. Mafalda Maria Teresa Rodrigues;(1999) 6 SCC 627).
8. Bar of limitation does not obstruct the execution. It bars the remedy. (See V. Subbf Rao v. Secy. to Govt. Panchayat Raj and Rural Development, Govt. of A.P.; (1996)7 SCC 626 ).
9. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time (See N.Balakrishnan v. M. Krishnamurthy; (1998) 7 SCC 123)."
10. In Damodaran Pillai & others v. South Indian Bank Ltd., AIR 2005 S.C. 3460, Hon'ble Apex Court had held as under:-
"14. It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.
15. It is well settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to.
"20. The principles underlying the provisions prescribing limitation are based on public policy aiming at justice, the principles of repose and peace and intended to induce claimants to be prompt in claiming relief.
21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation."
11. This legal position is explicitly clear that the principles underlying provisions of limitation are based on public policy aiming that justice should be furnished to all the parties and hardship or injustice may be relevant consideration in applying the discretion for condoning the delay. But such hardship of both the parties should be considered. In condoning the delay beyond period of limitation provided by the statute there must be cogent and satisfactory reasons. Such reasons are lacking in present matter.
12. The application for condonation of delay has been moved by appellant under Section 5 of Limitation Act, 1963, which reads as under:
"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
13. There is period prescribed for initiation of every legal proceedings in Limitation Act, and such period may be extended in accordance with mandatory provisions of the Act. The said provisions of Section-5 make its explicitly clear and mandatory that an application for extension of prescribed period of limitation may be allowed only if the appellant or applicant satisfies the Courts that he had sufficient cause for not preferring the appeal or making the application within such period. As discussed above, for deciding the matter of limitation not only the case of applicant-appellant should be considered, but the principles underlying the provisions the Act, which are based on public policy alongwith hardship and injustice to other party should also be considered. In the present matter, every consideration leads to inference against applicant-appellant. It has also been proved that applicant-appellant had failed to satisfy this Court that he had sufficient cause for moving the application for setting aside the abatement or for not moving the substitution application within period of limitation therefore under the provisions of Section 5 of Limitation Act his application should not be allowed.
14. In the present case, there is no sufficient ground for condoning the deliberate delay very long, memorandum of second appeal, in the absence of any reasonable or sufficient ground the Civil Misc. Delay Condonation Application No. 76648 of 2016 is hereby rejected. Therefore, being time-barred, the present Second Appeal (Defective) No. 72 of 2016, is also dismissed.
Order Date :- 28.03.2016.
Sanjeev Court No. - 19 Case :- SECOND APPEAL DEFECTIVE No. - 72 of 2016 Appellant :- Dinesh Chandra Dubey Respondent :- Kripa Shankar Dubey And 2 Ors.
Counsel for Appellant :- Ravindra Prakash Srivasta Hon'ble Pramod Kumar Srivastava, J.
Since, Civil Misc. Delay Condonation Application No. 76648 of 2016, filed for condoning the delay for filing this second appeal beyond period of limitation is dismissed today by separate order, therefore, the second appeal is dismissed as time-barred.
Order Date :- 28.03.2016.
Sanjeev