1. Heard learned counsel for the appellant on question of admission of appeal and perused the records.
2. Original Suit No. 106/2010, Rakesh Kumar Baudha v. M/s Ansal Housing Corporation Agra and Anr. was instituted by plaintiff claiming himself to be the owner in possession of disputed property, for the relief of permanent injunction restraining the defendants from interfering in his possession. Original suit proceeded ex-parte against defendants. After affording opportunity of hearing and accepting evidences adduced by plaintiff, the Court of Additional Civil Judge (Junior Division), Court No. 5, Agra had dismissed the original suit by its judgment dated 6.7.2013.
3. Plaintiff had filed memo of first appeal in the lower appellate court after lapse of period of limitation. Said memo of appeal was filed alongwith application under Section 5 Limitation Act and was registered as Misc. Case No. 353/2013, Rakesh Kumar Baudha v. M/s Ansal Housing Corporation Agra and Anr.
4. The application 4-C of plaintiff-appellant under Section 5 of Limitation act was supported by affidavit, in which it was pleaded that after the judgment dated 6.7.2013, plaintiff had applied for its application for the certified copy of judgment was given on 10.7.2013, which was made available to him on 18.7.2013. but the advocates have gone on indefinite strikes from 13.8.2013. Said strike was ended on 27.9.2013. Then plaintiff-appellant had filed memo of appeal on 1.10.2013. The delay in filing appeal was not deliberate and was bona fide, therefore the appellant should be given benefit of Section 5 Limitation Act, and delay in filing memo of appeal may be condoned.
5. Defendant-respondent had filed objection and counter-affidavit in lower appellate court against the application 4-C and supporting affidavits. By this objection/counter-affidavit, averments of application and affidavit of appellant was denied. Respondent further pleaded in his objection that after receiving certified copy of judgment and decree of the trial court, appellant had sufficient time to file appeal, but the same was not filed without any satisfactory reason. There is no sufficient ground for condonation of delay, therefore the application under Section 5 Limitation Act is liable to be rejected. It was further pleaded in objection/counter-affidavit that court working was never obstructed due to strike of lawyers during the period alleged by the appellant. The ground of lawyers' strike or the absence of appellant's lawyers is incorrect as no lawyer had given any affidavit in support of such claim. Appellant had not explained as to why he had not contacted his lawyer during period of limitation. Appellant had not appeared before court with clean hands and had concealed true facts. Therefore his application for condonation of delay is liable to be rejected.
6. No rejoinder affidavit was filed against the objection 23-C and its supporting counter-affidavit filed by defendant-respondents in lower appellate court. Therefore after affording opportunity of hearing, lower appellate court had passed impugned order dated 10.11.2015, in which it was mentioned that the appeal is time barred and the grounds mentioned for condonation of delay are not sufficient. In this matter no satisfactory explanation for delay in filing appeal was given by appellant; therefore his application under Section 5 of Limitation Act is rejected.
7. Aggrieved by the order dated 10.11.2015 passed by Additional District Judge, Court No.-2, Agra regarding rejection of Misc. Case No. 353/2013 and its application 4-C under Section 5 of Limitation act, the present second appeal has been preferred by plaintiff of the original suit.
8. Learned counsel for the appellant contended that trial court had decided the suit on the basis of mutation entries, while mutation entries in fact do not confer title. He further pleaded that sale-deed of plaintiff-appellant was not cancelled, therefore,his title should have been considered by trial court. He also contended that in this matter, certified copy was applied before lower court on 10.7.2013 and was supplied to plaintiff-appellant on 18.7.2013. Therefore, there is not much delay in institution of first appeal. The little delay in filing first appeal due to lawyers boycott of courts may be condoned.
9. The first point to be considered in this matter is that main ground of rejection of application 4-C under section 5 Limitation Act was that the facts mentioned in application 4-C and accompanying affidavit were controverted by objection and counter-affidavit filed by the defendants-respondents; but the plaintiff-appellant had not filed any rejoinder affidavit. Therefore the contents of counter-affidavit remained uncontroverted and believable. So on the basis of unrebutted and uncontroverted affidavit of defendant-respondents, the averments of application for condonation of delay were found controverted and were found not sufficient. This finding is technically not erroneousincorrect. Since averments of affidavit of plaintiff-appellant were controverted and that of defendant-respondents remained controverted and unrebutted, therefore, grounds of condonation of delay were rightly found not sufficient by the lower court. The finding on this point is not erroneous.
10. This contention of learned counsel for the appellant is not incorrect that matter should be decided on merits, but before proceeding for the same, it has to be decided that whether there existed sufficient ground for condonation of delay or not. The main ground for delay pleaded in delay condonation application of appellant was absence of his lawyers and strike of lawyers. There has been very strict view of this Court in Full Bench decisions that strike of lawyers obstructing the judicial proceeding of Court is act of contempt of Court, which should not be tolerate. This is a matter of public policy that has to be considered and implemented. Likewise the point of limitation is also a matter of public policy.
11. 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)."
12. 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."
13. In present matter, since the averments of appellant were controverted in lower appellate court and since averments of counter-affidavit of respondents remain uncontroverted, therefore, the grounds mentioned in application for condonation of delay in moving the memorandum of appeal should not be treated as based on sufficient grounds.
14. 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."
15. 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, and 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, along with hardship and injustice to other party should also be considered.
16. Apart from it, allowing such application of condonation of delay on ground of lawyers' strike abstaining deliberately from the court work or going on strike boycotting the courts' working is not only against the spirit of public policy, but is such an act of contempt of court that should not be respected in any way. Allowing such application on ground of lawyers' strike would amount to recognizing the lawyers' strike as sufficient ground for not appearing in the court. This situation cannot be accepted in public interest as well as in interest of justice.
17. It is legal right of a litigant to have speedy trial. Strike by lawyers will infringe such fundamental right of the litigants and such infringement cannot be permitted. Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in Court. If anyone does it, he commits an offence and interferes with the administration of justice and commits contempt of Court. But for the act of lawyer of one party the legal right of rival party must not be adversely affected. In present matter it is not proved that, in fact, there had been strike of lawyers. There was no reason given for alleged strike. No evidence or affidavit of any striking lawyer was given in support of appellant's claim. It has been experienced that even during period of alleged strikes the petitions, bail applications, interim stay applications, suits etc. are filed, if not in court rooms then in offices. Strikes do not stop those litigants from moving their petitions who are watchful of their rights.
18. In the light of the above discussion I am of the view that, if there had been any strike of lawyers, it was illegal and unethical. Such acts cannot be accepted as sufficient cause for condoning the delay in filing appeal, which has effect on legal rights of respondents accrued to them due to non filing of appeal within period of limitation.
19. Although, in present matter it is not proved that all courts in Agra were not functioning, or the suits or appeal were not being instituted in civil court of Agra, but even if it is accepted for the sake of argument that this was a situation, in that case also, the lawyers' strike cannot be recognized or appreciated. In any case, the strike by lawyers cannot be accepted as sufficient ground for condonation of delay in filing any petition, application, suit or appeal.
20. There appears no illegality or irregularity in finding of lower appellate court that may require interference in impugned order by exercise of jurisdiction of second appeal. The impugned order is based on appreciation of facts and there appears no infirmity or illegality in said order, therefore finding of lower court should not be interfered by re-appreciation of evidences. The only point to be determined in present matter has been as to whether there is sufficient ground for condonation of delay in filing first appeal before lower appellate court or not. This was not a question of law but was a question of fact, that can be decided on the basis of affidavits and evidences, as has been done by the lower appellate court. There appears no perversity in finding of lower appellate court, the order of which is based on appreciation of facts and circumstances. There appears no question of law, much less a substantial question of law, involved in this matter. None of the contentions of learned counsel for the appellant is found acceptable.
21. For the reasons discussed above, and in absence of any substantial question of law, this second appeal is hereby dismissed.
Order Date :- 29.03.2016 SR