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Harish Chandra Pandey v/s Kamala Devi

    Second Appeal No. 291 of 1983

    Decided On, 17 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE VINOD PRASAD

    For the Appellant: Sankatha Rai, J.S. Srivastava, P.N. Tripathi, Vinod Kumar Rai, Advocates. For the Respondent: M.D. Chaudhary, J.K. Srivastava, N. Lal, Murlidhar Chaubey, Riduvant Pratap Singh, Yogesh Tiwari, Advocates.



Judgment Text

Vinod Prasad, J.

1. This second appeal by the defendant appellants has been filed against the judgment and decree dated 18.1.1983 passed by IIIrd Additional District Judge, Mirzapur in Civil Appeal No. 182 of 1979, Smt. Kamla Devi and others v. Harish Chandra Pandey and others arising out of judgment and decree dated 1.6.1979 passed by IIIrd Munsif, Mirzapur in OS No. 517 of 1973. Necessary facts relevant for the present, stated in short, revealed that a suit for permanent prohibitory injunction was filed by the plaintiffs/respondents Smt. Rajwanti, Gorakh Nath Pandey and Ravindra Nath Pandey against appellants/defendants Harish Chandra Pandey, Sheetla Prasad Pandey, in respect of suit properties shown in the plaint map with the letters A, B, C, D and Ya, Ra, La Va, situated in town Kachhawa, district Mirzapur. During pendency of the suit, plaintiff No. 1 Rajwanti died and she was substituted alongwith plaintiff Nos. 2 and 3 Gorakh Nath Pandey and Ravindra Nath Pandey, also by present plaintiffs respondents Kamla Devi and Bimla Devi as plaintiffs 1/1 and 1/2 as her heirs and legal representatives. Subsequently, Harihar Prasad and Ram Ji Pandey were also impleaded and joined as defendants Nos. 3 and

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4 in the suit. It is mentioned here that initially the suit which was only for the relief of permanent prohibitory injunction, after impleadment of the parties was converted in a suit for declaration and possession as well as these reliefs were also added and prayed for subsequently.

2. Learned Munsif vide judgment and decree dated 1.6.1979 dismissed plaintiff's suit with cost. The aforesaid judgment and decree was challenged in Civil Appeal No. 182 of 1979 and the IIIrd Additional District Judge, Mirzapur vide impugned judgment and decree dated 18.1.1983 allowed the appeal, set aside the judgment and decree passed by the learned Munsif and decreed plaintiff's suit with cost throughout. Lower Appellate Court declared the plaintiffs/respondents as the owners of the suit property and also accepted their claim of possession and, therefore, restrained/injuncted defendants/appellants from interfering with plaintiffs possession in any manner. Aggrieved by the aforesaid judgment and decree passed by the Lower Appellate Court in the aforementioned civil appeal, that defendants appellants have come up in this second appeal.

3. This Second appeal was admitted on the substantial question of law mentioned in paragraph 18(i) and (iv), which are quoted herein below:

18. Because the following substantial questions of law arises for determination in the Second Appeal:

(i) Whether the plaintiffs' suit is barred by time?

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(iv) Whether the sale-deed for payment of adequate consideration could be termed sham transaction.

4. During pendency of the final hearing, an abatement application No. 39455 of 2010 alongwith affidavit was filed by Gorakh Nath Pandey plaintiff/respondent No. 4 on 8.2.2010, after serving it's copy on the Counsel for the appellant 5.2.2010, mentioning in paragraph 2 of the affidavit that appellant No. 1 Harish Chandra Pandey expired on 25.12.1996, appellant No. 2/1 Phulwanti Devi wife of Harihar Prasad Pandey died in March, 1997 and appellant 2/2 Jagdish Pandey son of Harihar Pandey died in December, 2002 but no substitution applications in respect these demised appellants have been filed till the said date 8.2.2010. The aforesaid abatement application was directed to be listed with previous papers on 10.2.2010.

5. In due course, the substitution application and the appeal again came up before the Bench on 9.11.2012. On the aforesaid dale, it was observed by this Court that no counter-affidavit to the abatement application has been filed till that date. It was further mentioned that Sri V.K. Rai prayed for indulgence in order to take appropriate steps for substitution. The appeal was directed to came up after three weeks alongwith the name of Sri Riduvand Pratap Singh. It transpires from the perusal of the record that a substitution application dated 27.11.2012 alongwith section 5 Limitation Act Application was filed for bringing on record the heirs of appellants 2/1 Smt. Phulwanti Devi and appellant 2/2 Jagdish Prasad Pandey.

6. The appeal was listed on 7.2.2014 when Counsel for the defendants plaintiffs submitted that the delay in filing of the substitution application should not be condoned and in any view of the matter since no substitution application for bringing on record the heirs of appellant No. 1 Harish Chandra Pandey has been filed and since the relief sought in the suit is joint and inseparable, therefore, the second appeal should be abated in full and be dismissed as such. Referring to paragraph 2 of the affidavit appended alongwith the abatement application, it was submitted that appellant No. 1 expired on 25.12.1996 and now seventeen years have gone by and for this enormous period, no substitution application was filed. In respect of filed substitution application it was urged that since appellant No. 2/1 Phulwanti Devi W/o died in March, 1997 and appellant 2/2 Jagdish Pandey expired in December, 2002, and no proper and convincing reason for not filing the substitution application for bringing their heirs on record within time has been mentioned in the delay condonation application appended alongwith substitution application, therefore section 5 Limitation Act Application be dismissed alongwith substitution application and appeal be abated and delay should not be condoned. When inquired by the Court also learned Counsel for the appellants/defendants was unable to state any reason whatsoever for not filing of substitution application for bringing the heirs of appellant No. 1 Harish Chandra Pandey on record and for not filing substitution application earlier for other two deceased within time allowed by law.

7. It is further discernible from the record that section 5 Limitation Act Application being Miscellaneous Application No. 351290 of 2012, which has been filed alongwith substitution application No. 351292 of 2012, is not supported with any affidavit and most weirdly, the only reason mentioned for the delay occasioned in filing of the substitution application is "that there is no laches or deliberately negligence on the part of the applicants. The delay is bona fide and is liable to be condoned giving benefit of section 5 of the Limitation Act." The aforesaid pleading, is woefully deficient and does not at all mention any reason explaining the delay of ten/fifteen years in filing the substitution application. The appellants are utterly careless and non-serious in pursuing their second appeal. In matters of consideration of delay condonation application, it too well settled trite law that each day delay has to be explained satisfactorily mentioning convincing and compelling reasons for condoning the delay. Contrary to above expounded law, appellants/defendants have not furnished any explanation at all to condone the delay and the furnished explanation is wholly insufficient. On such an explanation, as has been furnished by the appellants, the delay of ten/fifteen years in filing of the substitution application cannot be condoned. It is recapitulated that according to the plaintiffs/respondents case, appellant No. 1 expired on 25.12.1996 while appellant No. 2/1 expired in March, 1997 and appellant No. 2/2 Jagdish Pandey expired in 2002.

8. From the facts stated above, there is no reason to condone the delay in filing of the substitution application and, therefore, the delay condone application u/s 5 Limitation Act filed by the appellants as well as substitution application referred to above for bringing heirs of appellants/defendants No. 2/1 Phulwanti Devi and appellant 2/2 Jagdish Pandey both are dismissed.

9. There is no substitution application for bringing the heirs of appellant No. 1 on the record, who expired on 25.12.1996 and since the record indicates that the cause of action was joint and inseparable, therefore, the entire appeal has to abate against all the appellants/defendants.

10. On the above conclusion, a support can be drawn from the Apex Court decision in Babu Sukhram Singh Vs. Ram Dular Singh and Others, and Balwant Singh (Dead) Vs. Jagdish Singh and Others, . In the former decision Babu Sukhram Singh (supra), it has been held as under:

3. Now the question is whether the appeal has abated or not. As seen earlier in the plaint a joint claim is made against all the defendants. The first Appellate Court, as mentioned earlier, decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. In this Court relief asked for was against all the defendants. No separate claim was made against any of the defendants. Under these circumstances, quite clearly the appeal has abated as a whole under Order XXII, Rule 4 of the Civil Procedure Code. The appeal is accordingly dismissed. No costs.

11. In the later decision Balwant Singh (supra), it has been held as under:

The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details.

In the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., it has been laid down by the Apex Court as under:

7. In construing section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in 4 I.D (N.S.) 899 .

12. It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;... For the above reasons, there is no other alternative but to abate the appeal. Resultantly, this second appeal abates against all the appellants and is dismissed. Appeal Dismissed.
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