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Sohan Vs. Abdul Hameed Khan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 59 of 1975
Judge
Reported inAIR1976All159
ActsLimitation Act, 1963 - Sections 5 and 14; Code of Civil Procedure (CPC) , 1908 - Sections 100 - Order 21, Rule 32
AppellantSohan
RespondentAbdul Hameed Khan
Appellant AdvocateU.C. Srivastava, Adv.
Respondent AdvocateAkhtar Husain, Adv.
DispositionAppeal dismissed
Excerpt:
.....court below does not exercise its discretion at all or does so in capricious and arbitrary manner. - - the appellant having failed to make out a sufficient ground for condoning the delay the application under section 5 of the limitation act was rightly rejected......on 3rd december, 1974. the appeal was then filed on 4th december, 1974. along with the memo, of appeal an application under section 5 of the limitation act was also filed praying for the condonation of the delay in filing the appeal alleging that on legal advice he had preferred a revision before the high court but during the course of arguments in the revision on 5th september, 1974 when it was objected that an appeal should have been filed against the order the applicant's counsel made the statement withdrawing the revision petition and advised the applicant that he should obtain a certified copy at bahraich and file the appeal there. the applicant, therefore, made an application for certified copy but the folio was returned to him on the ground that the record had not been received.....
Judgment:

T.S. Misra, J.

1. This appeal arises in the following circumstances. The plaintiff-opposite party filed an application under Order 21, Rule 32 of the Code of Civil Procedure praying that Sohan the present appellant be imprisoned and his property be attached for disobeying the decree for permanent injunction passed against him in Suit No. 272 of 1955 on 6th July, 1965. That application was allowed by a learned Munsif Bahraich on 25th October 1971. Against that order a revision (No. 262 of 1971) was filed on 23-11-1971. That revision was disposed of by an order dated 5th September 1974. The counsel for the revisionist stated before this Court on 5th September 1974 that he may be permitted to withdraw the revision petition and that he would file later an appeal in the Court of the District Judge. Permission to withdraw the revision petition was given subject to payment of the cost of the opposite party. It was made clear that the order would not affect the rights of the decree-holder to agitate the plea of limitation when the appeal before the District Judge was filed. The memo, of revision was returned to the applicant on 5th November, 1974. He applied for a certified copy of the order of the learned Munsif on 6th November, 1974 but the application was returned to him on the same date. He then applied for the certified copy on 30th November, 1974. That copy was ready for delivery on 2nd December, 1974 and was actually delivered to the applicant on 3rd December, 1974. The appeal was then filed on 4th December, 1974. Along with the memo, of appeal an application under Section 5 of the Limitation Act was also filed praying for the condonation of the delay in filing the appeal alleging that on legal advice he had preferred a revision before the High Court but during the course of arguments in the revision on 5th September, 1974 when it was objected that an appeal should have been filed against the order the applicant's counsel made the statement withdrawing the revision petition and advised the applicant that he should obtain a certified copy at Bahraich and file the appeal there. The applicant, therefore, made an application for certified copy but the folio was returned to him on the ground that the record had not been received back from the High Court. The learned District Judge rejected this application on the ground that the applicant could have obtained a copy of the original order of the Munsif from the High Court Where the file was pending but he did not do it. He also observed that the applicant was adopting dilatory tactics by getting the execution proceedings stayed by filing a revision in the High Court whereas under law only an appeal could lie. Having rejected the application under Section 5 of the Limitation Act the appeal was also summarily rejected as being barred by time. Aggrieved, the appellant has now come up to this Court on Second Appeal.

2. For the appellant it was urged that inasmuch as the applicant had made out sufficient grounds for condoning the delay in filing the appeal before the District Judge the appellate court below erred in not condoning the delay and in rejecting the appeal as being barred by time. The submission was that the appellant had been acting under legal advice and, therefore, the time spent in prosecuting the revision before this Court and in obtaining the certified copy in the manner stated above should have been taken to be sufficient ground for condoning the delay- I find no merit in this contention. It is a settled law that the applicant had to show sufficient cause not only for not filing the appeal within the period of limitation prescribed by law but to explain the delay made thereafter day by day. The explanation must therefore cover the whole of the period of delay. It is equally settled that in construing Section 5 of the Limitation Act it is relevant to bear in mind two important considerations, namely, (1) 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 and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed, and (2) if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. It is pointed out in Ramlal v. Rewa Coalfields Ltd., (AIR 1962 SC 361) 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. 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: but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. Considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14.

3. In the case in hand, the appellate court below found that the applicant was negligent in obtaining the certified copy of the order passed by the trial court. It was observed that the applicant could have obtained a certified copy of that order by making a proper application to that effect in this Court where the original file had been received in connection with a revision petition.

4. The other ground on which the appellate court below refused to exercise the discretion was that the applicant had adopted dilatory tactics by getting the execution proceedings stayed by filing the revision petition in the High Court. The bona fides of the applicant were also thus doubted. The appellate court below, therefore, refused to exercise the discretion in favour of the ap-pellant. If the appellate court below refused to admit the appeal holding in exercise of its discretion that there was no sufficient cause for not preferring the appeal within the time prescribed that would be no ground in second appeal. The principle is that where the discretion has been exercised by the court below in a sound and reasonable way, the High Court would not interfere in second appeal. But if the court below does not exercise its discretion at all or exercises its discretion capriciously and arbitrarily or without proper legal material to support its decision, this Court would interfere with that order in second appeal. In the instant case, it could not be made out that the appellate court below had exercised the discretion arbitrarily or capriciously. I, therefore, find no reason to interfere with the same. The appellant having failed to make out a sufficient ground for condoning the delay the application under Section 5 of the Limitation Act was rightly rejected. That being so, the appeal filed by him before the learned District Judge was obviously barred by time and was correctly rejected summarily.

5. There is no merit in this appeal. It is accordingly dismissed with costs.


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