2025:JHHC:19231 --1-- C.M.P. No. 1096 of 2024 IN THE HIGH COURT OF JHARKHAND, RANCHI C.M.P. No. 1096 of 2024 ---- 1. Sri Ram Modak, son of Late Harendra Modak, aged about 83 years 2. Santosh Modak, aged about 40 years 3. Prabhat Modak @ Prabhat Kumar Modak, aged about 39 years Petitioner Nos.2 and 3 are sons of Late Dilip Modak All are residents of Mukunda, PO – Pargha, PS – Nirsa, District – Dhanbad .... Petitioners -- Versus -- 1. Shambhu Nath Modak 2. Jadu @ Sidhheshwar Modak, both are sons of Late Sitikantha Modak 3. Ajay Modak 4. Sujay Modak, both are sons of Late Madhab Modak 5. Putul Devi, W/o Ganesh Modak 6. Bhola Nath Modak 7. Sachin Modak 8. Kedar Nath O.P. Nos.6 to 8 are sons of Late Ganesh Modak 9. Ujjawal Kr. Modak, S/o Late Narayan Modak 10. Annapurna Devi, W/o Late Shiv Kali Modak O.P. Nos.1 to 10 are residents of Mukunda, PO – Pargha, District - Dhanbad 11. Bhagirath Modak 12. Mahadeo Modak O.P. Nos.11 and 12 are both sons of Late Chandrakant Modak 13. Anita Devi, wife of Late Durga Das Modak 14. Rishikesh Modak 15. Mukesh Modak O.P. Nos.14 and 15 are both sons of Late Durga Das Modak O.P. Nos.11 to 15 are residents of Mukunda, PO – Pargha, PS – Nirsa, District - Dhanbad 16. Tara Devi, W/o Late Dilip Modak 17. Madhuri Devi, W/o Late Lal Babu Modak 2025:JHHC:19231 --2-- C.M.P. No. 1096 of 2024 18. Tapas Modak, S/o Late Lal Babu Modak O.P. Nos.16 to 18 are residents of Mukunda, PO – Pargha, PS – Nirsa, District - Dhanbad .... Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioners :- Mr. Vibhor Mayank, Advocate For the O.Ps :- Mr. R.S. Mazumdar, Sr. Advocate :- Mr. Rohan Mazumdar, Advocate :- Mrs. Jasvindar Mazumdar, Advocate ---- 05/15.07.2025 Heard Mr. Vibhor Mayank, learned counsel appearing for the petitioners and Mr. R.S. Mazumdar along with Mr. Rohan Mazumdar, learned counsels appearing for the opposite parties. 2. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 25.09.2024 passed by learned Principal District Judge, Dhanbad in Civil Misc. Appeal No.05 of 2024 whereby the miscellaneous appeal filed by the petitioners has been rejected on the ground of limitation by the said order. 3. Mr. Vibhor Mayank, learned counsel appearing for the petitioners submits that the plaintiffs/petitioners had instituted the suit being Original Suit No.30 of 2022 for declaration of right, title and interest stating inter alia that the suit land commonly known as Nutan Bandh situated under Mouza No.148, Khewat No.2/26 under Khata No.74, bearing C.S. Plot No.357, measuring an area 2.39 acres and C.S. Plot No.358 measuring an area 2.62 acres was transferred in favour of Alladh Modi vide three different registered sale deeds by the original owner. He submits that other grounds 2025:JHHC:19231 --3-- C.M.P. No. 1096 of 2024 have also been taken in the said suit in which the petition under Order XXXIX Rule 1 and 2 of CPC has been preferred which has been rejected by the learned Court by order dated 18.03.2023 and against the said judgment the petitioners preferred a Civil Misc. Appeal under Order XLIII Rule 1(r) of Code of Civil Procedure stating inter alia that the learned Court has failed to appreciate that the contesting defendants have never denied the fact that the plaintiffs as well as the contesting defendants are descendants of common ancestors as also the defendants have never disputed the fact that the schedule tank was purchased by Alladh Modi. Thus, the plaintiffs/appellants are entitled to 1/3rd share and consequently are entitled to decree of temporary injunction. He submits that the said appeal was numbered as Civil Misc. Appeal No.05 of 2024. He submits that there is delay in filing of the said appeal and in view of that separate petition under Section 5 of the Limitation Act for condoning the delay of 11 months was filed. He submits that plaintiffs/petitioners Santosh Modak who was looking after the entire case was suffering from heart disease and he was also admitted to N H Brahmananda Narayan Multispecialty Hospital on 16.06.2023 and at the same time his son namely Anshuman Modak was also admitted in the same hospital on 18.06.2023. He submits that after improving the health condition the certified copy was obtained on 16.03.2023 which was received on 12.02.2024 and thereafter this appeal has been preferred. He further submits that 2025:JHHC:19231 --4-- C.M.P. No. 1096 of 2024 by the impugned order the learned appellate court has been pleased to reject the same discarding the medical certificate brought on the record. To buttress this argument, he relied in the judgment of Hon’ble Supreme Court in the case of Inder Singh versus State of Madhya Pradesh reported in (2025) SCC OnLine SC 600, wherein at paragraph No.14 it has been held as under :- 14. There can be no quarrel on the settled principle of law that delay cannot be condoned without sufficient cause, but a major aspect which has to be kept in mind is that, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation. 4. Relying on the above judgment, he submits that the petitioners herein are having the merit in appeal, however, it has been rejected on the ground of limitation only that too the sufficient cause has not been considered in its right perspective. On this ground, he submits that the impugned order may kindly be set aside. 5. Per contra, Mr. Mazumdar, learned counsel appearing for the opposite parties opposes the prayer and submits that the learned Court has given a cogent reason in dismissing the said appeal on the point of limitation. He submits that the sufficient explanation has not been made and in view of that the learned Court has rightly passed the order. He relied in the judgment of Hon’ble Supreme Court in the case of Mool Chandra versus Union of India and Another reported in (2025) 1 SCC 625, wherein at paragraph 2025:JHHC:19231 --5-- C.M.P. No. 1096 of 2024 Nos.21 and 22 it has been held as under :- 21. In this background when we turn our attention to the facts on hand, it would emerge from the records that appellant being aggrieved by the dismissal of the O.A. No.2066 of 2020 on the ground of delay had approached the Delhi High Court challenging the same. The High Court on the ground of penalty imposed being a minor penalty, refused to entertain the writ petition or in other words confirmed the order impugned before the Tribunal on merits. 22. This Court in Commissioner, Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and Another reported in 2009 (3) SCC 525 has taken a view that while deciding an application for condonation of delay the High Court ought not to have gone into the merits of the case. It has been further held:- “5. While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it. We ourselves have also examined the application filed under Section 5 of the Limitation Act before the High Court and, in our opinion, the delay of 178 days has been properly explained by the appellant. That being the position, we set aside the impugned order of the High Court. Consequently, the appeal filed before the High Court is restored to its original file. The High Court is requested to decide the appeal on merit in accordance with law after giving hearing to the parties and after passing a reasoned order.” 6. Relying on the above judgments, he submits that for deciding the petition of limitation the merit is not required to be looked into. He further relied in the judgment of Hon’ble Supreme Court in the case of Pathapati Subba Reddy (Died) by L.Rs and Others versus Special Deputy Collector (LA) reported in 2025:JHHC:19231 --6-- C.M.P. No. 1096 of 2024 (2024) SCC OnLine SC 513, wherein at paragraph No.26 it has been held as under :- 26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the 2025:JHHC:19231 --7-- C.M.P. No. 1096 of 2024 conditions have been imposed, tantamounts to disregarding the statutory provision. 7. 7. Relying on the above judgment, he submits that there are parameters of deciding the limitation petition has been set by Hon’ble Supreme Court in that judgment and in view of that there is no illegality in the impugned order. 8. In view of above submission of learned counsel appearing for the parties the Court has gone through the materials on record and finds that admittedly the petition under Order XXXIX Rule 1 and 2 filed by the petitioners has been rejected by the learned trial court and against that after gap of 11 months the miscellaneous appeal has been preferred under Order XLIII Rule 1(r) of CPC and the learned Court on the point of limitation itself has been pleased to reject the said appeal. From the impugned order, it transpires that the medical certificate and medical prescription of Santosh Modak was brought on the record and the other petitioners are brothers and in view of the medical certificate and medical prescription it transpires that one of the family member was admitted in the hospital and the others were looking him and were attending him in the hospital that cannot be ruled out. It has been disclosed that certified copy was applied on 16.10.2023 which was supplied on 12.02.2024 and thereafter the appeal has been preferred, these grounds have been taken for condoning the delay, however, the learned appellate court has not accepted the same on the ground that the other petitioners were competent to file the appeal, 2025:JHHC:19231 --8-- C.M.P. No. 1096 of 2024 however, they have not filed which appears not a good reason to reject the same as it is an admitted fact in light of prescription that one of the petitioner was having the heart ailment and he was admitted in N H Brahmananda Narayan Multispecialty Hospital. It is further admitted position that the said appeal has not been decided on merit and the principal decided by Hon’ble Supreme Court in the case of Pathapati Subba Reddy (Died) by L.Rs and Others versus Special Deputy Collector (LA) (supra) on which the reliance has been placed by Mr. Mazumdar, learned counsel appearing for the opposite parties that is not in dispute and in that judgment at paragraph No.26(V) it has been clearly held that the courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained that is discretionary in nature and due diligence has to be explained. Admittedly, the matter has not been decided on merit as yet and it has been dismissed on the point of limitation itself. 9. The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay, but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. What constitutes sufficient cause cannot be laid down by hard and fast rules. This aspect of the matter has been considered by the Hon’ble Supreme Court in the case of N. Balakrishnamn v. M. Krishnamurthy, 2025:JHHC:19231 --9-- C.M.P. No. 1096 of 2024 reported in (1998) 7 SCC 123 and the case of Mool Chandra v. Union of India on which the reliance has been placed by learned counsel appearing for the appellants. 10. The length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. There is no doubt that the limitation is said to be on public policy, however, rules of limitation are not meant to destroy the right of parties. The only purpose of limitation is to seen that the parties do not resort to dilatory tactics, but seek their remedy promptly. A court knows that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. Presumption cannot be drawn in every case that delay in approaching the court was deliberate. Further, the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. 11. What has been discussed here-in-above it is an admitted position that one of the petitioners/plaintiffs was admitted in hospital for heart ailment and the others appears to be attending on him in the hospital and the documents to that effect has been brought on record that is reflected from the impugned order itself. 12. In light of above discussion, reasons and analysis the Court finds that sufficient cause has been shown by the petitioners to 2025:JHHC:19231 --10-- C.M.P. No. 1096 of 2024 condone the delay of 11 months in filing of the said appeal and in that view of the matter the impugned order dated 25.09.2024 passed by learned Principal District Judge, Dhanbad in Civil Misc. Appeal No.05 of 2024 is hereby set aside. 13. The said appeal is restored to the file of learned Court and the same will be decided on merit in accordance with law after providing opportunity to all the parties. 14. The petitioners and the opposite parties are directed to appear before the learned appellate court on 28th July, 2025 at 10:30 AM. (Sanjay Kumar Dwivedi, J.) Sangam/ A.F.R.