Madhu Ram vs Kachru Lal

Pratap Krishna Lohra, J.—The appellant-plaintiff has preferred this second appeal against the impugned judgment and decree dated 24th of September 2012 passed by the Addl. District Judge (Fast Track) No. 1, Pali, Headquarter Jaitaran, District Pali (for short, learned first appellate Court''), whereby the learned first appellate Court has affirmed the judgment and decree passed by the learned Civil Judge (Jr. Div.) Bar, District Pali (for short, ''learned trial Court'') dated 11th of January 2010. The appellant-plaintiff instituted a civil suit against the respondent for perpetual and mandatory injunction before the learned trial Court and the learned trial Court after recording evidence of the rival parties, decided the crucial issue No. 1 against the appellant and dismissed the suit. Feeling aggrieved from the judgment and decree of the learned trial Court, the appellant preferred appeal before the learned first appellate Court, and the learned first appellate Court on examining the matter afresh and appreciating the evidence and other materials on record, fully concurred with the findings and conclusions of the learned trial Court and dismissed the appeal of the appellant. The appellant has made yet another attempt before this Court by way of preferring this second appeal u/s 100 CPC.

The office has reported that the instant appeal is barred by limitation and it has been preferred after 272 days from the date of expiry of the limitation.

For seeking condonation of inordinate delay of 272 days, the appellant has filed an application u/s 5 of the Limitation Act. Craving indulgence of this Court for condonation of delay, the facts narrated in Para 2 to 5 are as under:

That the appellant received the certified copy of the order dated 12.10.2010 and the same was sent to the legal cell of the applicant department. Further the copy of the order was forwarded to the higher authorities of the department.

That the higher authorities of the appellant department pointed out that the order of the Learned Additional District Judge was not just and proper. The same was then informed to the legal cell of the department.

That the legal cell of the appellant department instructed the counsel for the appellant so as to file a Second Appeal in the matter.

That it is submitted that the entire process the present Second Appeal has become time barred. It is submitted that the facts mentioned above clearly shows that the delay in filing the present Second Appeal is not at all intentional. The same is bonafide one and deserves to be condoned in the interest of justice.

On examining the aforementioned averments, it is crystal clear that all these facts are having no nexus whatsoever with the lis involved in the matter. It appears that the application has been drafted as if it is an appeal by the department. The present litigation is a private litigation between the rival parties and there is no causal connection of Government or any of the department with the issue involved in the matter. Section 5 of the Limitation Act postulates with clarity and precision that an aggrieved party seeking condonation of delay is obliged to satisfy the Court that it had sufficient cause for not preferring the appeal within time and its explanation must cover the whole period of delay. True it is that approach of the appellate Court in considering the cause shown should be such which would advance the cause of substantial justice rather than throttle it. However, a total callousness and apathy of a litigant towards his just rights cannot be excused by condoning the delay on mere askance. The legal position is no more res-integra that prayer at the behest of an aggrieved litigant cannot be acceded to due to lack of cogent grounds and satisfactory explanation. The case in hand is a glaring example of lack of cogent grounds and satisfactory explanation, and therefore, exercising discretion in favour of the appellant would render the provisions u/s 5 of the Limitation Act nugatory. Thus, viewed from any angle, I am not persuaded to grant any indulgence to the appellant in his pursuit for condonation of delay. The net result is that the application u/s 5 of the Limitation Act for condonation of delay sans merit and the same is hereby dismissed. The dismissal of the application for condonation of delay entails dismissal of the appeal itself.