Wakar Qureshi vs Shahjadi And Others

This petition under Article 227 of the Constitution of India has been filed challenging the order dated 07.05.2010 passed by 9th Additional District Judge (Fast Track) Gwalior in Miscellaneous Civil Appeal No.04/2010, by which the appeal filed by the petitioner under Order 43 Rule 1(r) of CPC has been dismissed on the ground of delay.

The necessary facts for the disposal of the present petition in short are that the respondents had filed a suit for declaration of title and permanent injunction. An application under Order 39 Rule 1 and 2 of CPC was also filed. The Additional Civil Judge, Class-II, Gwalior to the first Additional Civil Judge, Class-II, Gwalior in Civil Appeal No. 22-A/2008 passed temporary injunction order dated 12.10.2009, thereby restraining the petitioner from interfering with the peaceful possession of the respondents and the parties were directed to maintain status quo.

It appears that the petitioner filed an appeal under Order 43 Rule 1 of CPC along with an application under Section 5 of the Indian Limitation Act for condonation of delay. Appellate Court by order dated 07.05.2010 passed in Miscellaneous Civil Appeal No. 4/2010 has dismissed the application filed under Section 5 of the Indian Limitation Act and consequently, the miscellaneous civil appeal was also dismissed.

Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that it is well established principle of law that while considering the application for condonation of delay, the Court should not adopt a hyper-technical view and should take a lenient view, so that the case can be decided on merits.

In the present case, the order of temporary injunction was granted on 12.10.2009, however, the civil suit was dismissed in default by the Trial Court on 26.11.2009 and the same was restored on 20.01.2010, whereas the appeal has been filed as on 25.02.2010. It is fairly conceded by the counsel for the petitioner that even prior to the dismissal of the suit in default, the period of limitation for filing the appeal under Order 43 rule 1 of CPC had already expired. It is further submitted by the counsel for the petitioner that the appeal was filed after expiry of more than 30 days from the date of restoration of the suit. Thus, it is considered that if the period of limitation is calculated from the date of grant of temporary injunction, then the period of limitation had already expired prior to the dismissal of the suit in default. However, it is submitted by the counsel for the petitioner that the subsequent dismissal of the suit in default had created an impression in the mind of the petitioner that since the temporary injunction has already come to an end, therefore, they are not required to challenge the same. It is further submitted that taking a lenient view, the delay in filing the appeal under Order 43 Rule 1 of CPC may be condoned and the respondents/plaintiffs can be compensated by award of cost.

Per contra, it is submitted by the counsel for the respondents that the appeal was barred by limitation and, therefore, the Court below did not commit any mistake in rejecting the application under Section 5 of the Indian Limitation Act as sufficient cause was not shown by the petitioner.

Heard the learned counsel for the parties.

The Supreme Court in the case of State of Nagaland v. Lipok Ao reported in (2005) 3 SCC 752 has held as under:-

"8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.

What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned."

In the present case, although the period of limitation for filing the appeal against the order of temporary injunction had already expired even prior to the dismissal of the suit in default, however, the fact is that the suit was dismissed in default on 26.11.2009 and it was restored on 20.01.2010 and during this period, there was no temporary injunction order because of dismissal of the suit.

Under these circumstances, if any false impression was created in the mind of the petitioner, then it cannot be said to be completely irrelevant in the mind of a layman, who had no knowledge about the complexity of the legal situation. Thus, this Court is of the considered opinion that the Appellate Court should have adopted a lenient view by awarding cost to the respondents/plaintiffs.

Accordingly, this petition is allowed. The order dated 07.05.2010 passed by 9th Additional District Judge (Fast Track) Gwalior in Miscellaneous Civil Appeal No.04/2010 is hereby set aside. The delay in filing the appeal is hereby condoned on payment of cost of Rs7,500/- to the respondents within a period of one month from today.

The parties are directed to appear before the Appellate Court on 15.03.2019. No fresh notice is required to be issued. The deposit of cost shall be a condition precedent for hearing on merits.

It is made clear that if the petitioner fails to deposit the cost on or before 14.03.2019, then this order shall automatically lose its effect and the order dated 07.05.2010 passed by the 9th Additional District Judge (Fast Track) Gwalior in Miscellaneous Civil Appeal No.04/2010 shall automatically stand revived.

With aforesaid observation, the petition is finally disposed of.