Back
2005 Supreme(MP) 1021
2006(3) JLJ 292
D.C. Maheshwari, J.
Geetarani Ghosh v. Bhagwatibai and others
First Appeal No. 466 of 2002 : against the judgment and decree
passed by District Judge, Bhopal, in Civil Suit
No. 57-A of 1999;
Decided on 5.10.2005.
G.C. Jain with Anand Jain for appellant;
Smt. Shobha Menon with Nilesh Pillai for respondents No.1 to 5;
A.L. Patel, Government Advocate for respondent No.6.
Headnote:(1) Limitation Act, 1963 -- S.5 -- condonation of delay in filing appeal -- appeal not filed on wrong advice of counsel -- affidavit of counsel not filed -- more than three months‘ delay after obtaining certified copy not explained -- valuable right accrued to other side -- delay cannot be condoned.
On passing of the aforesaid decree appellant approached her counsel for tiling the appeal, he then advised no appeal is provided under the law against such decree so appeal was not preferred within time. But at subsequent stage, on consulting Senior Advocate Shri S.C. Godha, she was advised to file the appeal as such decree was appealable then appellant applied for certified copy of the judgment and decree on 2.7.2002, the same was obtained on 3.7.2002 and given to said senior counsel for filing the appeal. The appeal alongwith this application is preferred after more than two years. [Para 3
Held : Merely the allegation against the Advocate that he advised that appeal is not provided under law against the preliminary decree could not be a sufficient cause. The ignorance of law is not excused as per settled position of the law. Besides this, in the absence of the affidavit of Shri Awadh Narayan Advocate, who remained counsel for the appellant even in execution, such reason could not be believed because by alleging something against Advocate without prima facie proof like his affidavit appellant could not get any relief or benefit.
Apart from this, appellant has not shown any sufficient cause regarding delay from 3.7.2002 on which she obtained said certified copies to 12.11.2002 on which appeal was preferred which is also a period of more than 3 months. Even if the limitation is counted from the date of obtaining copies then the appeal is not preferred within time. It is also notable that in support of the contention regarding consultation with Senior Advocate on 27.6.2002 and subsequent consultation to him by the appellant have not been supported by the affidavit of such counsel. So such averments are also not reliable. Thus, the cause or reason as mentioned and argued by the appellant are not found to be correct or bonafide much less the sufficient cause in the absence of it the Court has no option except to dismiss the application for condonation of the delay in filing the appeal. [Paras 10 & 11
The valuable right which has already been accrued in favour of the respondent on expiry of limitation for appeal cannot be disturbed on the basis of flimsy or baseless or unexplained grounds. AIR 1962 SC 361 followed. 2005(2) Vidhi Bhasvar 15, 2003(II) MPWN 6 and 2005(2) MPLJ 340 distinguished. [Para 16
(2) Limitation Act, 1963 -- Art.116 -- appeal to High Court under Civil P.C. -- Limitation is ninety days from date of decree. [Paras 12 & 13
¼1½ ifjlhek vf/kfu;e] 1963 && /kkjk 5 && vihy Qkby djus esa foyac dh ekQh && dkmUlsy dh xyr lykg ij vihy Qkby ugha dh xbZ && dkmUlsy dk ‘kiFki= Qkby ugha fd;k && izekf.kr izfrfyfi vfHkizkIr djus ds i‘pkr~ rhu ekl ls vf/kd dk foyac Li"Vhd`r ugha && vU; i{k dks ewY;oku vf/kdkj izksn~Hkwr && foyac ekQ ugha fd;k tk ldrkA
fMØh ikfjr fd, tkus ij vihykFkhZ vihy Qkby djkus ds fy, vius dkmUlsy ds ikl xbZ rks mUgksaus voxr djk;k fd ,slh fMØh ds fo:) fof/k esa vihy micaf/kr ugha gS] blfy, vihy le; ls ugha dh xbZA ijarq ijorhZ izØe ij T;s"B vf/koDrk Jh ,l-lh- xks/kk ls ijke‘kZ djus ij mls vihy Qkby djus dh lykg nh xbZ D;ksafd ,slh fMØh vihy ;ksX; gS] rc vihykFkhZ us 2-7-2002 dks fu.kZ; vkSj fMØh dh izekf.kr izfrfyfi ds fy, vkosnu fd;k] og 3-7-2002 dks vfHkizkIr gqbZ rFkk vihy Qkby djus ds fy, mDr T;s"B dkmUlsy dks nh xbZA bl vkosnu lfgr vihy nks o"kZ ls vf/kd le; ds i‘pkr~ Qkby dh xbZ gSA ¼iSjk 3
vfHkfu/kkZfjr % vf/koDrk ds fo:) dsoy ;g vfHkdFku i;kZIr dkj.k ugha gks ldrk fd mlus lykg nh fd izkjafHkd fMØh ds fo:) fof/k esa vihy micaf/kr ugha gSA fof/k dh LFkkfir fLFkfr ds vuqlkjk] fof/k ls vufHkKrk ekQh ;ksX; ugha gSA blds vfrfjDr] Jh vo/kukjk;.k] vf/koDrk ds] tks fu"iknu esa Hkh vihykFkhZ ds dkmUlsy jgs] ‘kiFki= ds vHkko esa ,sls dkj.k ij fo‘okl ugha fd;k tk ldrk D;ksafd vf/koDrk ds ‘kiFk tSls izFken`"V~;k lcwr ds fcuk mlds fo:) vfHkdFku ij vihykFkhZ dksbZ Hkh vuqrks"k ;k Qk;nk izkIr ugha dj ldrhA
blds vfrfjDr] vihykFkhZ us 3-7-2002 ls] tc mlus mDr izekf.kr izfrfyfi;k¡ vfHkizkIr dh Fkha] 12-11-2002 rd tc vihy izLrqr dh xbZ] foyac ds ckjs esa dksbZ Hkh i;kZIr dkj.k ugha n‘kkZ;k gS] ;g Hkh rhu ekl ls vf/kd dh vof/k gSA ifjlhek dh x.kuk ;fn izfrfyfi;k¡ vfHkizkIr djus ds fnukad ls dh tk, rc Hkh vihy le; ls izLrqr ugha dh xbZ gSA ;g Hkh /;krO; gS fd 27-6-2002 dks T;s"B vf/koDrk ls ijke‘kZ ysus rFkk ckn esa muds }kjk vihykFkhZ dks lykg fn, tkus ds ckjs esa ladFku Hkh mu dkmUlsy ds ‘kiFki= }kjk lefFkZr gSA vr% ;g izdFku Hkh voyacuh; ugha gSA vr% vihykFkhZ }kjk mYys[k vkSj cgl fd, x, vuqlkj dkj.k lgh vkSj okLrfod ugha ik, x,] i;kZIr dkj.k rks nwj dh ckr gSA mlds vHkko esa] vihy Qkby djus esa foyac dh ekQh ds fy, vkosnu [kkfjt djus ds flok; U;k;ky; ds ikl dksbZ Hkh fodYi ugha gSA ¼iSjk 10 ,oa 11
vihy dh ifjlhek ds volku ij izR;FkhZ ds i{k esa tks ewY;oku vf/kdkj igys gh izksn~Hkwr gks pqdk gS og lkjghu ;k vk/kkjghu ;k vLi"Vhd`r vk/kkjksa ij fo{kqC/k ugha fd;k tk ldrkA , vkb vkj 1962 ,l lh 361 vuqlfjrA 2005¼2½ fof/k HkkLoj 15] 2003¼2½ e-iz- ohDyh uksV~l 6 rFkk 2005¼2½ ,e ih ,y ts 340 izHksfnrA ¼iSjk 16
¼2½ ifjlhek vf/kfu;e] 1963 && vuq-116 && flfoy izfØ;k lafgrk ds v/khu mPp U;k;ky; dks vihy && ifjlhek fMØh ds fnukad ls uCcs fnu dh gSA ¼iSjk 12 ,oa 13
1. This order shall decide an application tiled by the appellant under Order 41, Rule 3(A) r/w section 151 CPC and section 5 of the Limitation Act alongwith the appeal memo against the judgment and preliminary decree vide dated 3.5.2000 passed by District Judge, Bhopal, in Civil Original Suit No. 57-A/99.
2. The material facts for disposal of this application are that the respondents No.1 to 5 being plaintiffs had filed a suit against appellant for declaration, possession and perpetual injunction in respect of landed property situated at village Chuna Bhatti, Bhopal. The same was decreed by the trial Court vide aforesaid judgment, in pursuance of it preliminary decree was also drawn up. It is not in dispute that appeal against the same was not preferred within prescribed limitation while it is preferred at belated stage alongwith IA No. 4282/02, the application for condonation of delay.
3. According to its contention, on passing of the aforesaid decree appellant approached her counsel for filing the appeal, he then advised no appeal is provided under the law against such decree so appeal was not preferred within time. But at subsequent stage, on consulting Senior Advocate Shri S.C. Godha, she was advised to file the appeal as such decree was appealable then appellant applied for certified copy of the judgment and decree on 2.7.2002, the same was obtained on 3.7.2002 and given to said senior counsel for tiling the appeal. The appeal alongwith this application is preferred after more than two years. As per appellant, the delay was caused due to wrong advice of the counsel. If the same is not condoned then appellant has to suffer irreparable loss. As per further averments of it, the said cause is bona fide and sufficient for condoning the delay. Some other contentions regarding merits of the matter have also been mentioned in it. The application is further supported by an affidavit of appellant. Said application and affidavit have been signed on 10.11.2002.
4. After filing the reply of it on behalf of the respondents appellant has submitted in addition two more affidavits one of herself and another of Shri C.R. Dutta which were sworn on 2.1.2004. In both the affidavits some more factual matrix have been described which were not mentioned in the application and earlier affidavit. As such subsequent affidavit have been submitted just to rebut the objection of the respondents as raised in reply.
5. By filing reply to it dated 19.3.2003, respondents have stated that the grounds for condonation of delay in tiling the appeal as mentioned by the appellant are not cogent or sufficient to grant the relief as prayed by the appellant. It is also said that grounds made by the appellant in application are very vague as appellant has not mentioned the specific date on which he approached the then counsel who advised her that the appeal is not provided under the law. The affidavit of such counsel and the said senior counsel who advised for appeal have also not been tiled in support of the contention. The averments of the appellant are misconceived and devoid of any substance. It is further contended that in pursuance of the said decree respondents initiated an execution proceedings before the trial Court, registered as 57-A/1994 in which counsel for the appellant has given appearance on 8.12.2000 subsequent to it in execution of decree the commission was directed and executed which is evident from the proceedings of execution dated 28.2.2002. The photocopy of such proceedings has also been annexed with reply. This reply is further supported by affidavit of Jairam Yadav, the respondent No.3.
6. Subsequent to this reply on filing additional affidavits by the appellant these respondents have also tiled an affidavit of said Jairam Yadav dated 12.2.2004 to rebut the averments of additional affidavits of the appellant.
7. On hearing learned counsel for appellant has advanced all aforesaid grounds and circumstances as mentioned in the application and a
