1 2025:CGHC:17299 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 407 of 2024 1 - Shivcharan S/o Shri Chotelal Markandey, Aged About 72 Years R/o Village-Bhathagaon (Kokdi), Tehsil Balodabazar, District- Balodabazar- Bhatapara (C.G.) -----(Plaintiff)/ Appellant versus 1 - Panchram S/o Shri Chotelal Markandey, Aged About 55 Years R/o Village Bhathagaon, Kokdi, Tehsil And District Balodabazar-Bhathapara (C.G.) 2 - Bhupendra S/o Panchram Markandey, Aged About 40 Years R/o Village Bhathagaon, Kokdi, Tehsil And District Balodabazar-Bhathapara (C.G.) --- Defendant/Respondents For appellant : Mr. Arham Siddiqui, Adv. For Respondents : Mr. Suresh Kumar Verma, Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) Order on Board 15/04/2025 1 This second appeal under Section 100 of the Code of Civil Procedure, 1908, has been preferred by the appellant/plaintiff challenging the order (Annexure A-1) dated 24-6-2024 passed in unregistered First Appeal by 2nd Addil. District Judge, Balodabajar, Distt. Balodabajar--Bharapara (CG), whereby the application under Section 5 of the Indian Limitation Act filed by appellant / plaintiff was rejected and consequently first appeal was also rejected. Digitally signed by AVANISH KUMAR PATHAK Date: 2025.04.21 10:28:51 +0530 2 [For the sake of convenience, parties would be referred to as per their status shown in the plaint filed before the trial Court]. 2 Facts of the case in nutshell are that, the appellant/plaintiff filed a civil suit for permanent injunction and vacant possession stating inter alia that the on 16-4-1997, the plaintiff was given patta of land bearing Khasra No. 796/1, plot No. 6, area 33 x 33 sq. ft. situated at village Kokdi (Bhathagaon), PH No. 14, RNM and Tehsil Balodabajar, Distt. Balodabajar-Bhatapara, by the Gram Panchayat Kokdi, in which he was in peaceful possession. In the month of December, 2014, defendants entered into the disputed land and made illegal construction on it. Hence, Smt. Anjana Bai, wife of the plaintiff filed civil suit bearing No. 3A/2015, which was rejected vide judgment dated 25-10-2016 on the ground that since Patta has been granted in favour of the husband of plaintiff therein, therefore, any proceeding related to the disputed land can be filed by the plaintiff herein only, not by his wife. Hence, the plaintiff filed the instant civil suit. Leaned trial Court framed 5 issues for determination and after recording evidence, dismissed the civil suit filed by the plaintiff vide judgment and decree dated 23-3-2021. Being aggrieved with the same, appellant/plaintiff preferred first appeal before 2nd Additional District Judge, Balodabajar, District Balodabajar – Bhatapara (C.G.) under Section 96 of the CPC alongwith application under Section 5 of the Indian Limitation Act on 1-9-2023 for condoning the delay of about 2 years and 5 months in filing the first appeal. 3 3 The 1st appellate Court, after hearing both the parties, vide impugned order dated 24-6-2024 passed in unregistered appeal, rejected the application for condonation of delay in filing the first appeal, consequently, the 1st appeal has also been rejected, which give rise to file instant second appeal questioning the same. 4 This appeal has been admitted on the following substantial question of law :- “Whether, the First Appellate Court has erred in law by dismissing the first appeal filed by the appellant on the ground of delay and thereby deprived appellant from his right to contest the case on merit ?” 5 Learned counsel for the appellant/plaintiff would submit that, the judgment and decree dated 23-3-2021 was passed by the trial Court by a biparty judgment, but the plaintiff is a resident of remote village of district Balodabajar-Bhatapara, his wife was suffering from Filaria and pus was oozing from her feet, her leg was operated upon, plaintiff has no issues and he is alone to look after his wife, therefore, he could not contact his counsel. Further, he is also not aware of the procedure of limitation in filing appeal, therefore, delay of 2 years and 5 months has occurred in filing instant appeal. He further submits that appellant/plaintiff wants that the first appeal be decided on merits, therefore, delay occurred in filing the first appeal, which is bonafide, may be condoned and the first appellate Court may be directed to register the first appeal and 4 decide the same on its own merits in accordance with law. 6 Per contra, learned counsel for the respondents/defendants would submit that the cause shown by the plaintiff for condonation of delay, is not sufficient, as no sufficient medical documents has been filed by the plaintiff before the 1st appellate Court to substantiate his contention. He further submits that, the delay is inordinate as it is about 2 years and 5 months, therefore, the instant 2nd appeal is liable to be dismissed, else it may be allowed by imposing heavy costs. 7 I have heard learned counsel appearing for the parties and perused the material available on record. 8 Undisputedly, the first appeal under Section 96 of the CPC was filed by the appellant / plaintiff with the delay of about 2 years and 5 months, as the judgment and decree was passed by the trial Court on 23-3-2021 and the first appeal was preferred by the plaintiff on 1-9-2023. The plaintiff has pleaded that, since his wife was suffering from Filaria disease, pus was oozing from her leg, therefore, her leg was operated upon, and there was none except him to look after her as they have no issue, that is why, delay has occurred in filing the first appeal. In this regard, he has also filed many medical documents from 2017 to 2022, therefore, it can be supposed that his wife was suffering from Falirea. But said ailment cannot be held to be sufficient ground for filing the appeal with delay of more than 2 years and 5 months. However, at the same 5 time, it is also settled preposition of law that, instead of dismissing the appal, petition etc on technical ground, it ought to have been decided on merit, so that, a party can get justice in his case on the strength of its merit. It is also settled preposition that, if delay is not malafide and deliberate, then, liberal approach may be taken while considering the application for condonation of delay. 9 The Supreme Court in N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] observed that the sufficient cause has to be construed liberally especially when the delay is not deliberate and mala fide. Paras 11 & 12 of the said decision are as under : “11. Rules of limitation are not meant to destroy the right 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 necessitation newer persons to seek legal remedy by approaching the Courts. So a life span 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 up sit finis litium (it is for the gen- eral welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not re- sort to dilatory tactics but seek their remedy promptly. 6 The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in ap- proaching the Court is always deliberate. This Court has held that the words “sufficient cause” under Sec- tion 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari {AIR 1969 SC 575} and State of West Bengal Vs. Administrator, Howrah Municipality {AIR 1972 SC 749}.” 10 In B.S. Sheshagiri Setty and others Versus State of Karnataka and others reported in (2016) 2 SCC 123, their Lordships of the Supreme Court have held that when what is at stake, is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. It is apt to reproduce the following observations:- “28. If a statute does not prescribe the time limit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. ” 7 11 Reverting to the facts of the instant case, though there is a delay of more than 2 years and 5 months in filing the first appeal, but having considered the cause shown by the plaintiff for delay, which is supported by medical documents and further considering the fact that, the defendants have contended that if delay is condoned, then it can be condoned after imposing heavy cost, therefore, in the light of the aforesaid case laws, I feel inclined to allow instant second appeal subject to imposing cost against the appellant/plaintiff. 12 The substantial question of law formulated in this appeal is answered in ‘affirmative’ and in favour of the plaintiff. 13 Accordingly, the application under Section 5 of the Limitation Act filed by the appellant/plaintiff for condonation of delay in filing the first appeal is allowed, subject to payment of cost of Rs. 5,000/- payable to the respondents/defendants by the appellant/plaintiff before the 1st appellate Court within a period of 2 months from today, the delay of about 2 years and 5 months in filing the 1st appeal is condoned and the impugned order dated 24-6-2024 passed by the 2nd Additional District Judge, Balodabajar is set aside. The 1st appellate Court is directed to register the first appeal (unregistered) (Shivcharan Vs. Panchram and another) and dispose of the same on its own merits in accordance with law. 14 Counsel for the parties are directed to keep present their respective parties before the first appellate Court i.e. 2nd Addl. Distt. Judge, 8 Balodabajar on 12-6-2025. 15 Registry is directed to remit the records to the courts below forthwith. No order as to cost(s). Sd/- (Naresh Kumar Chandravanshi) JUDGE Pathak