The Chhattisgarh High Court on Tuesday allowed the second appeal of a sadhu against the first appellate court order that had dismissed the appeal as barred by limitation.
The appeal was filed by Buddhu, a sadhu, through Advocate Lavkush Sahu. The facts of the case are that the appellant’s suit for declaration of title and permanent injunction was dismissed by the trial court on October 31, 2008 against which he preferred appeal before the first appellate court on February 18, 2009 with a delay of 70 days. The first appellate court rejected the application for condonation of delay and also dismissed the appeal as barred by limitation against which this second appeal under Section 100 of the CPC has been preferred by the appellant in the High Court.
Counsel for the Appellant submitted that the first appellate court is absolutely unjustified in not considering the ground shown in the application for condonation as the plaintiff is a sadhu and used to travel across the country for religious purposes and his application was supported by affidavit, though it was replied, but no counter-affidavit was filed controverting the sufficient cause shown in the application, therefore, the condonation application ought to have been allowed by the first appellate court and delay could have been condoned, as such, the second appeal be allowed and the judgment of the first appellate court deserves to be set aside.
On the other hand, B.M. Rao, the counsel for respondent, supported the judgment of the first appellate court and submitted that no sufficient cause has been shown for delay in filing the appeal and as such, the first appellate court has rightly rejected the application and dismissed the appeal.
The substantial question of law to be answered in the appeal is “Whether the first appellate Court was justified in dismissing the appeal as barred by limitation by recording a finding which is perverse and contrary to the record ?”
A Single Bench Of Justice Sanjay K. Agrawal observed that the first appeal was filed on 18.2.2009 with a delay of 70 days, but the appellant filed an application for condonation of delay supported by affidavit as his suit was dismissed on 31.10.2008 and he preferred first appeal with a delay of 70 days supported by application for condonation of delay. The reason assigned is that he is saint (sadhu) and used to travel across the country for religious purpose, therefore, he could not come to know about the judgment of the trial Court and therefore could not prefer appeal right in time. He filed affidavit in support of application for condonaton of delay, which was not controverted by the defendants by filing a counter-affidavit. The reason assigned by the Appellant appears to be sufficient as having suffered the decree the plaintiff would not get an advantage by filing an appeal with a delay of 70 days particularly when he has lost the suit and he has been non-suited by the trial Court.
The Court Cited the Judgement of the Supreme Court in the matter of Collector. Land Acquisition, Anantnag and another v. Mst. Katiji and others 1, construing the meaning of “sufficient cause” under Section 5 of the Limitation Act, 1963 held that the Courts should adopt a liberal and justice-oriented approach and condoned the delay of four days in filing appeal, under Section 5 of the Limitation Act, 1963.
Further , in the matter of N. Balakrishnan v. M. Krishnamurthy 2 it has been held by the Supreme Court that “sufficient cause” has to be construed liberally especially when the delay is not deliberate and mala fide, held the Court.
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In the Judgement , the Court said that
“Reverting to the facts of the present case in light of the aforesaid principle of law laid down by their Lordships of the Supreme Court, it appears that first appeal has been dismissed as barred by limitation though sufficient cause has been shown for delay, as the plaintiff / appellant could not prefer appeal well in time. The first appeal ought to have been decided on merits by the first appellate court.”
The matter is remitted to the first appellate court to consider and dispose of the appeal on merits within two months from the date of receipt of a copy of this judgment.