IMPORTANT POINT
The court reinforced that the burden of proving sufficient cause for delay lies with the appellant, and ignorance of a judgment is insufficient for condonation.

JUDGMENT :

1. The present first appeal has been filed by the appellant against the judgment and decree dated 16.08.2011 passed by learned Additional District Judge (Fast track) No.2, District Jodhpur in Civil Suit No. 01/2011 whereby, the suit of cancellation of sale deed and perpetual injunction has been decreed.

2. The respondent no.1 plaintiff Smt. Sua Devi had filed a suit for cancellation of sale deed dated 24.10.2008 and permanent injunction against the appellant. The summons were issued by the trial court to the defendants but the defendant Sunil did not appear despite service. The notices were served upon the appellant but no written statement was filed on behalf of the appellant and finally the right to file written statement was closed by the trial court on 06.08.2011. The learned trial court proceeded ex parte and decreed the suit vide judgment and decree dated 16.08.2011 on the basis of statement of the plaintiff and affidavits, and it was held that the defendant no.1 had executed the sale deed upon receiving the consideration and also handed over the property in question and therefore, the defendant no.1 was not having any right to sell the property in question to the appellant by way of sale deed dated 24.10.2008 and accordingly, the sale deed dated 24.10.2008 was cancelled.

3. The present appeal has been listed in ‘Defect’ category as the same is barred by delay of 3535 days. The appellant has filed an application under Section 5 of Limitation Act. Notices of application u/s 5 of Limitation Act were issued to the respondent who has filed reply to application.

4. Counsel for the appellant submits that the impugned judgment and decree was passed by the court below on 16.08.2011 but the appellant had no knowledge about the said judgment and decree. It is argued that Smt. Sua Devi died on 03.03.2018 and after her death, when a revenue appeal was filed by legal representative of Late Smt. Sua Devi before the Additional District Collector (First), Jodhpur, and same was decided vide order dated 24.02.2021, the appellant came to know about the judgment and decree dated 16.08.2011 passed by learned Additional District Judge (Fast Track) No.2, Jodhpur. It is argued that as soon as the appellant came to know about the judgment, he immediately applied for certified copy of the judgment and the appeal was filed before this court. It is submitted that he never signed vakalatnama in favour of counsel Shri Mool Singh Gehlot but he appeared on behalf of appellant and in this regard, he also made a complaint before the Bar Council. Therefore, it is prayed that the delay in filing the appeal may be condoned and the appeal may be heard on merits.

5. Per contra, counsel for the respondents argued that the present appeal against the judgment and decree dated 16.08.2011 has been filed after a period of more than ten years and therefore, the delay cannot be said to be bonafide at all. Admittedly, the summons were duly served upon the appellant and his counsel had also put in appearance before the trial court but no written statement was filed on behalf of the appellant. So far as the complaint made by the appellant against Shri Mool Singh Gehlot is concerned, the same has been dismissed. No day to day satisfactory explanation with regard to the delay caused in filing the appeal has been given by the appellant, therefore, no case is made out of condoning the delay caused in filing the appeal and the appeal is liable to be dismissed being barred by limitation.

6. I have heard learned counsel for the parties and carefully gone through the record.

Section 5 of the Limitation Act, 1963 is reproduced hereinunder for our reference:

“5. Extension of prescribed period in certain cases.—Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient ca