1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 10 of 2017 1. Rajendra Prajapati 2. Baleshwar Prajapati 3. Lakhan Prajapati All sons of Late Mahabir Kumhar 4. Sandeep Prajapati, S/o Late Chandra Prajapati All of R/o Peksa, P.O. & P.S.- Barisakhi & Itkhori, Dist. Chatra … … Defendants/ Appellants/Appellants -Versus- 1. Nandu Kumhar 2. Lato Kumhar (Dead, substituted vide order dated 16.07.2024) Both sons of Late Teja Kumhar, R/o Village- Peksa, P.O. Barishakhi, PS- Gidhour, Dist.- Chatra 2(a) Ram Kishor Prajapati, R/o Piska, P.O. Barishakhi, P.S. Itkhori, Dist. Chatra 3. Shambhu Prajapati, S/o Late Sohari Prajapati, R/o Village Barwari, P.O.- Kanhachati, PS- Rajpur, Dist.- Chatra 4. Kaliya Devi, W/o Bigan Prajapati R/o Line Mohalla, Ward No. 16, P.O. & P.S.- Chatra, Dist.- Chatra, 5. Santosh Prajapati 6. Prem Prajapati 7. Nageshwar Prajapati All sons of Late Fagu Prajapati, Resident of Village Pitij, P.O. & P.S.- Itkhori, Dist.- Chatra, Present resident of Village- Pahra, P.O. & P.S.- Gidhaur, Dist.- Chatra 8. Dharmi Devi, D/o Late Teja Kumhar, W/o Kesho Kumhar, R/o Bakchumba, P.S.- Rajpur, PO- Tatra, Dist.- Chatra 9. Kanhaiya Kumhar, S/o Late Tahal Kumhar (dead, substituted vide order dated 16.07.2024) 9(a). Most Mohani Devi W/o Late Kanhai Prajapati. 9(b). Most. Chanchala Devi W/o Late Suresh Prajapati daughter-in- law of Late Kanhai Prajapati. 9(c). Birendra Prajapati S/o Late Kanhai Prajapati. Respondent No 9(a) to 9(c) R/o Village- Peksa, PO- Barishakhi, PS- Gidhour, Distt-Chatra. 9(d). Hewanti Devi W/o Deva Prajapati R/o-Khadaiya PO- Khadaiya, PS- Tandwa, Distt-Chatra. 9(e). Dipani Devi W/o Khemlal Prajapati, R/o Bardwar, PO-Peltol PS- Rajpur, Distt-chatra. 9(f). Kamlesh Devi W/o Rajpal Prajapati, R/o Baheta, PO- Baheta, PS- Sahawar, Distt- Kasganj, State- Uttarpradesh. 2 9(g). Urmila Devi W/o Chhakan Prajapati, R/o Baigawari, PO- Hewai, PS- Keredari, Distt- Hazaribagh. 9(h). Urmila Devi w/o Churawan Prajapati, R/o Rajpur, PO & PS- Rajpur, Distt-Chatra. 10. Kheman Kumhar, S/o Late Tahal Kumhar, R/o Bakchuma, P.O.- Tatra, P.S.- Rajpur, Dist.- Chatra 11. Binay Kumhar, S/o Late Tahal Kumhar, R/o Bakchuma, P.O.- Tatra, P.S.- Rajpur, Dist.- Chatra 12. Bisheshwar Prajapati, S/o Late Bihari Kumhar (Dead, substituted vide order dated 16.07.2024) 12(a). Fulwa Devi W/o Late Bisheshwar Prajapati 12(b). Vivek Prajapati S/o Late Bisheshwar Prajapati 12(c). Vikash Prajapati s/o Late Bisheshwar Prajapati Respondent No 12(a) to 12(c) R/o Bakchumba, PO- Pahra, PS- Tatra Distt-Chatra. 12(d). Sanju Devi W/o Sanjay Prajapati, D/o Late Bisheshwar Prajapati, R/o & PO-Pahra, PS- Tatra, Distt- Chatra. 12(e). Suchita Devi W/o Dinesh Prajapati, D/o Late Bisheshwar Prajapati, R/o Kamodi, PO, PS & Distt- Koderma. 12(f). Puja Devi W/o Sanjay Prajapati, D/o Late Bisheshwar Prajapati, R/o Bishunpur, PO & PS- Itkhori, Distt- Chatra. 13. Padum Prajapati, son of Late Bihari Kumhar, R/o Bakchuma, P.S.- Rajpur, P.O.- Tatra, Dist.- Chatra 14. Arjun Prajapati S/o Late Bihari Kumhar (Dead, Substituted vide order dated 16.07.2024) 14(a). Kaushalya Devi W/o Late Arjun Prajapati. 14(b). Ajeet Prajapati S/o Late Arjun Prajapati. 14(c). Ranjit Prajapati S/o Late Arjun Prajappati. 14(d). Chhotu Prajapati S/o Late Arjun Prajapati. Respondent no. 14(a) to 14(d), R/o Peksa, PO- Barishakhi Post Gidhour, Distt- Chatra 14(e). Sangeeta Devi W/o Prakash Prajapati, D/o Late Arjun Prajapati R/o Karma Tulbul, PO- Kanhachati, PS- Rajpur Dist- Chatra. 14(f). Binita Devi W/o Dilip Prajapati, D/o Late Arjun Prajapati. R/o Baturi, PO- Rajipur, PS- Rani Talav Kanta, Distt- Patna. 14(g). Anita Devi W/o- Vikash Prajapati D/o Late Arjun Prajapati R/o Barmoriya PO- Basariya, PS- Chouparan, Distt- Hazaribagh. 15. Anarwa Devi, W/o Suresh Prajapati, D/o Late Lokhani @ Lokhani Devi @ Lukhani Devi, father’s name Late Bihari Prajapati, R/o Village Barisakhi, P.O. & P.S.- Barisakhi & Gidhour, Dist.- Chatra 3 16. Mosst. Suranti Devi, W/o Late Chandra Prajapati, Daughter-in-law of Late Mahabir Kumhar, R/o Village Barisakhi, P.O. & P.S.- Barisakhi & Gidhour, Dist. Chatra 17. Lakhiya Devi, W/o Bandu Prajapati, D/o Lokhani @ Lukani Devi, Father’s name Late Bihari Prajapati, R/o Village- Lambuya, P.O. Dhangadda, P.S.- Tandwa, Dist.- Chatra 18. Shanti Devi, W/o Sanjay Prajapati, D/o Lokhani @ Lukani Devi, father’s name Late Bihari Prajapati, R/o Baraini, P.O.+ P.S. Chatra, Dist.- Chatra … … Plaintiffs/Respondents/Respondents --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Vijay Kumar Sharma, Advocate For the Respondents : --- 12/7th January 2025 1. Learned counsel for the appellants is present. 2. This appeal has been filed against the order dated 4th October 2016 passed by the learned Principal District Judge, Chatra in Civil Appeal No. 10/2016, whereby the civil appeal against the judgment dated 29.09.2004 (decree signed on 15.10.2004) passed by the learned court of Additional Munsif, Chatra in connection with Partition Suit No. 15/1988 has been dismissed. 3. The learned counsel for the appellant has argued on 06.01.2025 and then today also. The arguments as recorded in order dated 06.01.2025 are quoted as under : - “Learned counsel for the appellants Mr. Vijay Kumar Sharma is present. 2. Learned counsel for the appellants submits that the matter arises out of Partition Suit No. 15 of 1988 which was decreed in the year 1992. A title appeal was filed and the matter was remanded vide judgment dated 13.09.2000. Upon fresh adjudication, the decree in the partition suit was drawn on 29.09.2004. The decree was an ex- parte decree. 3. The learned counsel further submits that against the ex-parte decree, the appellants filed Miscellaneous Case No. 1 of 2006 which was dismissed for default on 22.07.2007. The said order was challenged in Miscellaneous Civil Appeal No. 05 of 2007 which was again dismissed for non-prosecution on 07.06.2010. Thereafter, another Miscellaneous Case No. 03 of 2010 was filed 4 challenging the order of dismissal in Miscellaneous Civil Appeal No. 05 of 2007 and the said miscellaneous case was dismissed on 21.01.2016. Thereafter, the appeal was filed before the learned First Appellate Court on 27.02.2016 with a prayer for condonation of delay under section 5 of the Limitation Act. 4. Learned counsel for the appellants has referred to Section 14 of the Limitation Act to submit that the appellants were pursuing their remedy before other forum and therefore, the period during which the appellants were pursuing their remedy ought to have been condoned by the learned First Appellate Court and consequently, a substantial question of law arises for consideration by this Court. 5. In the backdrop of the aforesaid series of litigations/petitions filed by the appellants some of which stood dismissed for non- prosecution time and again, this court is not at all satisfied that the provisions of section 14 of the Limitation Act would come in the rescue of the appellants. There was delay of 4137 days in filing the appeal before the learned First Appellate Court. 6. At this, learned counsel for the appellants has submitted that one opportunity may be given to him and submits that the matter be posted for further hearing tomorrow. 7. Post this case tomorrow i.e., on 07th January 2025.” 4. Learned counsel for the appellants in furtherance to the arguments advanced yesterday i.e. 6th January 2025 has referred to the judgment passed by Hon’ble Karnataka High Court reported in 1997 SCC OnLine Kar 190 (Defence Colony Co-operative Housing Society Ltd. vs. Lt. Col. B.J. Shantharaj & Anr.) and has submitted that altogether three issues were framed by the appellate court in first appeal before the Hon’ble Karnataka High Court who condoned the delay of 8 years 45 days. He submits that the delay was condoned by referring to Section 14 of the Limitation Act. 5. The learned counsel has further relied upon the judgment passed by the Hon’ble Allahabad High Court reported in AIR 1991 All 317 (U.P. State Road Transport Corporation vs. Kedar Singh & Others) paragraph 14 to submit that if mistake is committed by the counsel, then the litigant cannot be made to suffer. In the said case, the case could not be filed within the period of limitation on account of mistake of the counsel. There was actually a delay of around 7 days. 5 6. The learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court arising out of SLP (C) No. 17665 of 2018 (Purni Devi & Anr. vs. Babu Ram & Anr.) decided on 02.04.2024 and has submitted that in the said case, the provisions of Section 14 of the Limitation Act have been considered and delay has been condoned. He has submitted that in the said judgment, the order of the High Court rejecting the plea for exclusion of time in terms of Section 14 was considered and the finding of the High Court was set-aside and the execution application filed by the plaintiff was restored. 7. The learned counsel has reiterated that the appellants have been pursuing their remedies before other courts under wrong advice of the counsel and therefore Section 14 of the Limitation Act is applicable and the period during which the appellants had pursued the matter before other forums is required to be excluded and this aspect of the matter has not been considered by the First Appellate Court and therefore substantial question of law arises in the present case. He submits that the appeal be admitted on the question of law arising out of applicability of Section 14 of the Limitation Act. 8. After hearing the learned counsel appearing on behalf of the appellants, this Court finds that it is not in dispute that the matter arises out of Partition Suit No. 15/1988 in which written statement was also filed and contested and the suit was decided vide judgment and decree dated 29.09.2004. Against the said judgment, no appeal was filed and Misc. Case No. 01/2006 was filed under Order IX Rule 7, 13 read with Section 151 of CPC on behalf of the defendants which was dismissed vide order dated 22.07.2007. The appellate court has recorded that it was apparent that after the decision of the partition suit, the defendants were sleeping for more than one year and they did not challenge it in any proceeding before filing of Misc. Case No. 01/2006. Further after dismissal of the Misc. Case No. 01/2006 on 22.07.2007, Civil Appeal No. 05/2007 was filed before the District Judge which was dismissed on 07.06.2010 due to non-prosecution. Thereafter, another Misc. Case No. 03/2010 was filed for restoration of Civil Appeal No. 05/2007 and the said miscellaneous 6 case was also dismissed on 21.01.2016 and only thereafter the appeal being Civil Appeal No. 10/2016 was filed against the judgment and decree dated 29.09.2004 with a delay of 4137 days in filing the appeal which was dismissed by the impugned judgment dated 04.10.2016. 9. The learned appellate court after considering the entire gamut of affairs and the history of the litigation has recorded a finding that the conduct of the appellants of the said case was not fair, rather they were only interested in prolonging the proceeding and there was lack of due diligence on the part of the appellants of the said case. 10. During the course of hearing, the learned counsel for the appellants has not been able to show any material or to even argue to satisfy this Court in connection with the requirements under Section 14(2) of the Limitation Act which requires that in order to give the benefit of Section 14, the party has to demonstrate that he was pursuing his matter with bonafide , diligently and in good faith before another forum. 11. This Court finds that the aforesaid requirement of Section 14(2) of the Limitation Act is not even prima facie satisfied in the present case. The initial petition after decision of the suit was itself filed after expiry of one year as recorded by the learned court and further one of the petitions in sequel was also dismissed for non-prosecution. 12. The argument of the learned counsel for the appellants that the litigant should not suffer on account of fault on the part of the counsel is not acceptable to this Court considering the facts and circumstances of this case. Even the litigant is required to be vigilant and take care of the proceedings and no foundational fact has been brought to the notice of learned first appellate court or even to the notice of this court exhibiting bonafide , good faith and due diligence on the part of the appellants and the learned appellate court while dismissing the appeal has recorded that there was complete lack of bonafide on the part of the appellants. The findings recorded by the learned appellate court in refusing to condone the delay and dismissing the first appeal is a well- reasoned findings based on appreciation of materials on record. 7 In such circumstances, no question of law much less any substantial question of law arises for consideration by this Court in this second appeal. The operative portion of the findings of the learned appellate court refusing to condone delay is quoted as under:- "In light of above discussion, it appears that conduct of appellants is not fair rather they are only interested to prolong the proceeding on one or other pretext by filing frivolous applications, cases etc. It is also apparent that appellants were well aware from the very beginning regarding impugned judgment and order and they were trying to prolong the matter in other frivolous proceeding without challenging it in a Competent Court of law. Therefore, there is lack of bona fide on the part of the appellants. In light of above discussion, it has come out that appellants are very much negligent and they are lacking bona fide and have not acted diligently rather remained either inactive or active in mischievous manner, hence it cannot be said that there is justifiable ground to condone the delay. In present case, if delay is condoned, it would be an utter disregard to the legislature as well as the mandate of the legislation. Nowehere any reasonable ground or bona fide on the part of the appellants has been shown in challenging the impugned judgment and decree. After preparation of final decree well within knowledge of the appellants they are trying to drag the matter by depriving the decree holders from enjoyment of its fruit." 13. So far as the judgment passed by the Hon’ble Karnataka High Court reported in 1997 SCC OnLine Kar 190 is concerned, in the said case while deciding Issue No. 1, the Hon’ble Karnataka High Court had clearly recorded that the proceeding at every stage was prosecuted by the appellant society with due care and diligence and they were serious throughout to take care that it is taken to a logical end and consequently while deciding Issue No.3, the delay of 8 years and 45 days was condoned by referring to Sections 5 and 14 of the Limitation Act. In the present case, in the absence of due care and diligence from the side of the appellants as mentioned above, the said judgment passed by the Hon’ble 8 Karnataka High Court does not apply to the facts and circumstances of this case. 14. So far as the judgment passed by the Hon’ble Allahabad High Court reported in AIR 1991 All 317 is concerned, in the said case, there was delay of 7 days in filing the appeal and an application under Section 5 of the Limitation Act was filed seeking condoning the delay. The Hon’ble Allahabad High Court found that the delay was caused on account of some mistake by the counsel or his office and further found that the appellant-Corporation had taken all steps timely and was not guilty at any stage for any lapse or negligence on its part and the delay was sufficiently explained. There was no applicability of Section 14 of the Limitation Act in the said case. In the present case, the appellants did not take any step for more than one year after the decision of the partition suit and they also did not show interest to pursue the restoration petitions also which resulted into dismissal due to non-prosecution this was followed by filing of further miscellaneous petitions. Finally, the appellant filed Civil Appeal No. 10/2016 against the judgment and decree of the trial court with a delay of 4137 days, which can be said to be inordinate delay without sufficient explanation and in absence of basic elements of section 14 of the Limitation Act, the section 14 is also not applicable. Accordingly, the aforesaid judgment also does not apply to the facts and circumstances of this case. 15. So far as the judgment passed by the Hon’ble Supreme Court in the case of Purni Devi (supra) is concerned, in the said judgment, the Hon’ble Supreme Court has considered the basic requirements of attracting Section 14 of the Limitation Act and one of the conditions is that prior proceeding has been prosecuted with due diligence and in good faith and while considering the phrases ‘due diligence’ and ‘in good faith’, the Hon’ble Supreme Court has referred to the earlier judgment passed wherein it was held that these phrases only mean that the party who invokes Section 14 should not be guilty of negligence, lapse or inaction. Further, there should be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. 9 16. Para-30 to 37 of the judgment passed in the case of Purni Devi (supra) read as under: “30. The principles pertaining to applicability of Section 14, were extensively discussed and summarised by this Court in Consolidated Engg. Enterprises (Supra), wherein while holding the exclusion of time period under Section 14 of the Limitation Act to a petition under Section 34 of the Arbitration Act it was observed:— “21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a court.” 31. This Court in Consolidated Engg. Enterprises (Supra) further expounded that the provisions of this Section, must be interpreted and applied in a manner that furthers the cause of justice, rather than aborts the proceedings at hand and the time taken diligently pursuing a remedy, in a wrong Court, should be excluded. 32. In the present case, it is not in dispute that:— (i) Both the proceedings are civil in nature and have been prosecuted by the Plaintiff or the predecessor in interest. (ii) The failure of the execution proceedings was due to a defect of jurisdiction. (iii) Both the proceedings pertain to execution of the decree dated 10.12.1986, which attains finality on 09.11.2000. (iv) Both the proceedings are in a court. 33. The only objection pointed out by the Respondent to the ingredients for invocation of Section 14, is that the Plaintiff have not approached this Court with clean hands and did not approach the Court of the Tehsildar diligently and in good faith. 34. The judgment of this Court in M.P. Steel (Supra) discussed the phrases, “due diligence” and “in good faith” for the purposes of invocation of Section 14 of the Limitation Act. While considering the application of Section 14 to the Customs Act, it was observed: “10. We might also point out that Conditions 1 to 4 mentioned in the Consolidated Engg. case [(2008) 7 SCC 169] have, in fact, been met by the Plaintiff. It is clear that both the prior and subsequent proceedings are civil proceedings prosecuted by the same party. 10 The prior proceeding had been prosecuted with due diligence and in good faith, as has been explained in Consolidated Engg. [(2008) 7 SCC 169] itself. These phrases only mean that the party who invokes Section 14 should not be guilty of negligence, lapse or inaction. Further, there should be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. xxx xxx xxx 49. ……. the expression “the time during which the plaintiff has been prosecuting with due diligence another civil proceeding” needs to be construed in a manner which advances the object sought to be achieved, thereby advancing the cause of justice.” (emphasis supplied) 35. The judgments in Consolidated Engg. Enterprises (Supra) and M.P. Steel (Supra) have been followed consistently by this Court. For instance in Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd.5 (2-Judge Bench), while holding Section 14 to be applicable to applications under Section 7 of the Insolvency and Bankruptcy Code, 2016 and the SARFAESI Act, it was observed: “75. Section 14 of the Limitation Act is to be read as a whole. A conjoint and careful reading of sub-sections (1), (2) and (3) of Section 14 makes it clear that an applicant who has prosecuted another civil proceeding with due diligence, before a forum which is unable to entertain the same on account of defect of jurisdiction or any other cause of like nature, is entitled to exclusion of the time during which the applicant had been prosecuting such proceeding, in computing the period of limitation. The substantive provisions of sub-sections (1), (2) and (3) of Section 14 do not say that Section 14 can only be invoked on termination of the earlier proceedings, prosecuted in good faith.” 36. More recently, in Laxmi Srinivasa R and P Boiled Rice Mill v. State of Andhra Pradesh (2-Judge Bench), this Court followed the dictum in Consolidated Engg. Enterprises (Supra) and M.P. Steel (Supra) to exclude the time period undertaken by the Plaintiff therein in pursuing remedy under Writ Jurisdiction, in the absence of challenge to the bona fides of the Plaintiff, in view of Section 14. 37. No substantial averment has come on record to substantiate the claim that the predecessor in interest of the Plaintiff approached the Tehsildar with any mala fide intention, in the absence of good faith or with the knowledge that it was not the Court having competent jurisdiction to execute the decree. The object to advance the cause of justice, as well must be kept in mind.” 17. This Court also finds that the factual matrix of the present case clearly indicates that there was complete lack of due diligence on the part 11 of the appellants and this Court is of the considered view that the learned first appellate court has rightly refused to condone the delay and the said delay was not condonable even by referring to Section 14 of the Limitation Act. The principles of law as laid down by the Hon’ble Supreme Court in the case of Purni Devi (supra) cannot be disputed, but those principles do not help the appellants in any manner . The findings of the appellate court recording lack of bonafide and filing of frivolous petitions on the part of the appellants which has been recorded based on appreciation of materials on record has already been quoted above. This court is of the considered view that the impugned order has been passed on the basis of settled law in the matter of condonation of delay. No question of law much less any substantial question of law arises for consideration in the present case. Accordingly, this appeal is dismissed. 18. Pending I.A., if any, is dismissed as not pressed. (Anubha Rawat Choudhary, J.) Mukul