Brahma Dutt vs Bitthal Das

The present second appeal under Section 100 of the Code of Civil Procedure has been filed, laying challenge to the judgment and decree dated 27.01.2016, passed by the Additional District Judge No.2, Bikaner (hereinafter referred to as the 'Appellate Court').

The appeal is reported to be barred by limitation for 905 days. An application seeking condonation of delay has been filed by the appellant with the appeal.

In the application under Section 5 of the Limitation Act the appellant has given details of his posting from 01.08.2000 to 14.05.2016, with a view to project as if, he was away from Bikaner, when the appellate decree came to be passed.

Indisputably, the Appellate Court had rejected the appellant's appeal, vide its judgment and decree dated 27.01.2016. During which period, according to the appellant's own version, he was working on the post of UDC at Government Girls Senior Secondary School, Himmatsar, which is about 30 km from Bikaner, where his appeal was pending.

A perusal of the application under Section 5 of the Limitation Act shows that the appellant has not stated any reason worth the name, for which he was precluded from filing the appeal within prescribed time. The appellant has given details of his posting prior to passing of the appellate order, however, has not even stated as to whether on and after the decision dated 27.01.2016, whether he was in Bikaner or not.

Looking to the fact that a decree of mandatory injunction for removal of his construction had already been passed on 10.07.2007, the appellant's indolence towards his appeal and failure to take up proceedings against the judgment dated 27.01.2016 is beyond anybody's comprehension. The appellant has been negligent towards his case and woke up from his slumber, after about three years only when he was confronted with the execution proceedings.

Learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court reported in (2008) 8 SCC 321 in the case of Perumon Bhagvathy Devaswom Vs. Bhargavi Amma (Dea) by Lrs & Ors. in support of his contention that the delay in question deserves to be condoned.

As against this, Mr. Bhaiya-learned counsel appearing for the respondent relied upon the judgment of Hon'ble Supreme Court reported in 2012 (12) DNJ 395 in the case of Office of the Chief Post Master General & Ors Vs. Living Media India Ltd & Anr., wherein the Hon'ble Supreme Court has refused to condone the delay of 427 days finding to be not explained.

Needless to observe that the question of limitation is a question of fact, when it comes to an application under Section 5 of the Limitation Act. Each application is required to be decided on its own facts and merit keeping into consideration the averments made in the application.

In the present case, as noticed above, no explanation for the delay of 905 days has been given. The application under Section 5 of the Limitation Act is absolutely vague.

There is no explanation or justification for the inordinate delay of 905 days. Hence, it cannot be said that the appellant was prevented from filing the appeal in time.

The application under Section 5 of the Limitation Act is thus dismissed.

As a natural corollary of the dismissal of the application under Section 5 of the Limitation Act, the appeal is also dismissed.