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JHARKHAND HIGH COURT
Sanjay Kumar Dwivedi, J.
Pushpa Dave @ Devi and Ors. – Appellants
versus
Udai Kumar Rajgarhia and Ors. – Respondents
S.A. No.180 of 2002
Decided on 25.1.2023
(A) Civil Procedure Code, 1908 – Order 22 Rule 9 – Substitution and abatement of appeal – No specific order for abatement of a proceeding under one or other provision of Order 22 is envisaged – Abatement takes place on its own force by passage of time – Where an application for setting aside an abatement is made but court having not been satisfied that party seeking setting aside of abatement was prevented by sufficient cause from continuing appeal, court may decline to set aside abatement – Then net result would be that appeal would stand disposed of as having abated. (Para 15)
(B) Limitation Act, 1963 – Section 5 – Limitation – Condonation of delay – Sufficient cause means that party should not have acted in a negligent manner or there was a want of bona fide on its part in view of facts and circumstances of a case or it cannot be alleged that party has “not acted deliberately” or “remained inactive” – However, facts and circumstances of each case must afford sufficient ground to enable Court concerned to exercise discretion for reason that whenever Court exercises discretion, it has to be exercised judiciously – Applicant must satisfy Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, Court should not allow application for condonation of delay – Court has to examine whether mistake is bona fide or was merely a device to cover ulterior purpose – Lack of bona fide and gross inaction and negligence are vital factors which should be taken into consideration while considering question of condonation of delay – Rules of limitation are not meant to destroy rights of parties. (Paras 18, 20, 24 and 25)
Result: Appeal dismissed.
JUDGMENT
Heard Mr. Sanjay Kumar Tiwari, learned counsel for the appellants and A.K. Sahani, learned counsel for the respondents.
2. This second appeal has been filed being aggrieved and dissatisfied with order dated 10.07.2002 passed by the learned District Judge, Dhanbad in Title Appeal No. 72 of 2001 which was preferred against the judgment and decree dated 31.07.1997 passed in Title Suit No. 17 of 1988.
3. The Title Suit No. 17 of 1988 was instituted by the respondents/plaintiffs against the appellants for declaration of their right over the suit property and for confirmation of possession of finding that deed of cancellation dated 02.06.1988 made by the defendants nos. 1 to 6 is illegal and inoperative and is not binding on the plaintiffs and for permanent injunction on the ground that on the basis of deed of gift dated 07.01.1985 executed by defendant no.1 the plaintiffs have acquired a valid right, title and possession. The said suit was decreed in favour of the respondents/plaintiffs. Aggrieved with that first appeal was filed which was dismissed by the learned appellate court vide judgment dated 10.07.2002.
4. The case of the plaintiffs/respondents in plaint is that the suit property previously belonged to the defendants in permanent transferable right plaintiffs are nephew of defendents no. 1 to 4 while defendant no. 1 was in possession by a registered deed of gift dated 7.1.1985 gave away the property to plaintiffs. At the time of gift plaintiffs were minors as such gift was accepted on their behalf by their father. Further case of the plaintiffs is that there was old structure over the suit property which was demolished by the plaintiffs and plaintiffs have constructed a market complex named “Rajgaria Shopping and Residential Complex” and six tenants had been inducted.
It is further case of the plaintiffs that when the shopping complex was completed the defendant no.1 to 6 used to work as an accountant in the business of the father of the plaintiffs. But the defendant no. 1 to 6 since the month of June, 1988 out of sheer greed in order to grab the suit properties started raising claim in the gifted property and the defendants no. 1 to 6 executed a deed of cancellation on 2.6.1988 in respect of the deed of gift dated 7.1.1985. The said deed of cancellation contains false frivolous and baseless allegation.
It is further case of the plaintiffs that on 7th July 1988 defendants No. 1 to 6 illegally, wrongfully and forcefully broken and opened the rooms of said complex which were set to be let out to tenants.
It is further case that defendant nos. 1 to 6 is realizing rent from tenants on the under standing that they are real owner of the property.
It is further case of the plaintiffs that defendant nos.1 to 6 are residing in the first floor of the said market complex on the permission of the father of the plaintiffs. It is further stated that defendants no. 1 to 6 showing some affidavits of the father of the plaintiffs wherein it has been alleged that suit property was held by the plaintiffs as were benamidar of the defendant no. 1 to 6 these documents are manufactured by defendant nos. 1 to 6 taking advantage of signature of the father of the plaintiffs over some blank papers.
Lastly it has been pleaded that Umashanker the father of the plaintiffs practically saved the defendant no.1 from starvation by giving him employment in his business and out of gratitude defendant no. 1 executed a deed of right dated 7.1.1985 in the hand of plaintiffs.
5. The case of defendants is that the defendants have contested the suit and stated that the suit in the present form is not maintainable plaintiffs have no locustandi to institute the present suit. The suit is bad and barred under specific relief act, Indian Contract Act, Limitation Act and under the principle of waiver, acquiescent and estoppel.
It is further case of the defendants that so far love and affection as alleged in plaint by defendants towards the plaintiffs is false and
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