Jharkhand High Court
Rajesh Kumar vs Deo Kumar Roy on 21 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 08 of 2024
With
I.A. No.840/2024
Rajesh Kumar .....Appellant
Versus
1. Deo Kumar Roy,
2. Kishore Kumar Roy ....... Respondents
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Appellant:-Mr. Prashant Pallav, Advocate
For the Resp. No.1 : Mr. Jay Shankar Tiwary, Advocate
13/Dated: 21/07/2025
Notices upon respondent nos. 1 and 2 have been issued. Pursuant
to that respondent no.1 has appeared and respondent no.2 has not
appeared and with a view to provide one more opportunity the matter was
adjourned on 12.06.2025. Further on 10.07.2025 the matter was adjourned
inspite of that respondent no.2 has chosen not to appear in view of that this
second appeal on the point of limitation is being heard in absence of
respondent no.2.
2. Heard Mr. Prashant Pallav, learned counsel for the appellant and
Mr. Jay Shankar Tiwary, learned counsel for the respondent no.1.
3. I.A. No. 840 of 2024 has been filed for condonation of delay of
537 days in filing the instant second appeal against the part of the
judgment dated 16.03.2020 passed in Civil Appeal No. 18 of 2019 and Civil
Appeal No. 15 of 2019 by learned District Judge-I, Godda.
4. Mr. Prashant Pallav, learned counsel for the appellant submits
that the appellant all along was enjoying the possession of the suit property
and continued with the possession after the passing of the judgment dated
16.03.2020 in Civil Appeal No. 18 of 2019. He further submits that the
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State Authorities had confirmed the title and possession of the appellant and
the appellant was carrying out work over the suit property. The authorities
had even extended protection when resistance was extended by the
respondent. He further submits that subsequently vide order dated
17.07.2020 the appellant herein was called upon by the respondents to
maintain the status quo which was challenged by the appellant before the
Hon’ble High Court by filing W.P.(C) No. 3568 of 2020. The Respondent also
filed W.P.(C) No. 3693 of 2020 challenging the order dated 17.07.2020. He
submits that two Writ Petitions are pending before the Hon’ble High Court.
He further submits that appellant has purchased the Schedule D property
arising out of Title Suit No. 7 of 1953 which was allotted in favour of the
vendor of the appellant and the said was purchased in the year 2012 by a
registered sale deed and possession was provided to the appellant in the
even year. He submits that mutation was created and possession was also
found by the Circle Officer as well as Deputy Commissioner and the district
administration provided police force to protect the appellant. He further
submits that in view of that legal advice was made that as the possession
is there, there is no need to file second appeal and in view of that the said
delay has occurred. He further submits that now the respondent has tried
to dispossess the possession of the appellant in view of that it was advised
to file second appeal against the judgment of the learned First Appellate
Court as finding is made about the deed that is valid however possession
was not said to be there in favour of the appellant and in view of that
subsequent development as the protection was there by the district
administration the possession is in the hand of the appellant and now
interference has been made for that second appeal has been filed. By way
of drawing the attention of para 8 of the said I.A, he submits that
interference had been made with regard to suit property and a further a
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registered sale deed with respect to part of suit property on 06.01.2024 has
been executed in favour of wife of the person who has decided the first
appeal by the judgment dated 16.03.2020. In this background he submits
that delay of 537 days has occurred and in view of that the delay may kindly
be condoned and to buttress this argument he relied in the case of ” K.
Subbarayudu and others Vs. Special Deputy Collector (Land
Acquisition), reported in (2017) 12 SCC 840. He refers to para 11 of the
said judgment which is as under:-
“11. The term “sufficient cause” is to receive liberal
construction so as to advance substantial justice, when no
negligence, inaction or want of bona fides is attributable to the
appellants, the court should adopt a justice-oriented approach in
condoning the delay. In State of Nagaland V. Lipok AO, it has held
as under : (SCC p. 757, para 8)
“8…… 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.”
5. He submits that in the above background and the nature of
dispute the court may take liberal view as the lis is cropped up and if the
delay is not condoned the right of appeal would be taken up of the
appellant herein. On the same line he relied in the case of ” Perumon
Bhagvathy Devaswom Vs. Bhargavi Amma” reported in (2008) 8 SCC
321. He refers to para 6 to 8 which is quoted hereinbelow:-
” 6. What should be the approach of courts while considering
applications under section 5 of Limitation Act, 1963, has been indicated in
several decisions. It may be sufficient to refer to two of them. In Shakuntala
Devi Jain v. Kuntal Kumari [AIR 1969 SC 575], this Court reiterated the
following classic statement from Krishna vs. Chathappan .
“… Section 5 gives the courts a discretion which in respect of jurisdiction is
to be exercised in the way in which judicial power and discretion ought to be
exercised upon principles which are well understood; the words `sufficient
cause’ receiving a liberal construction so as to advance substantial justice
when no negligence nor inaction nor want of bona fides is imputable to the
appellant.”
7. In N.Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123], this Court
held:
“9. It is axiomatic that condonation of delay is a matter of discretion of the
court. Section 5 of the Limitation Act does not say that such discretion can
be exercised only if the delay is within a certain limit. Length of delay is no
matter, acceptability of the explanation is the only criterion. Sometimes3
delay of the shortest range may be uncondonable due to a want of
acceptable explanation whereas in certain other cases, delay of a very long
range can be condoned as the explanation thereof is satisfactory. Once the
court accepts the explanation as sufficient, it is the result of positive exercise
of discretion and normally the superior court should not disturb such finding,
much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or arbitrary or perverse. But it is a different
matter when the first court refuses to condone the delay. In such cases, the
superior court would be free to consider the cause shown for the delay
afresh and it is open to such superior court to come to its own finding even
untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the
parties and to advance substantial justice..
11. Rules of limitation are not meant to destroy the rights of parties. They
are meant to see that parties do not resort to dilatory tactics, but seek their
remedy promptly.
12. A court knows that refusal to condone delay would result in foreclosing a
suitor from putting forth his cause. There is no presumption that delay in
approaching the court is always deliberate. This Court has held that the
words “sufficient cause” under Section 5 of the Limitation Act should receive
a liberal construction so as to advance substantial justice.
13. It must be remembered that in every case of delay, there can be some
lapse on the part of the litigant concerned. That alone is not enough to turn
down his plea and to shut the door against him. If the explanation does
not smack of mala fides or it is not put forth as part of a dilatory strategy,
the court must show utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by the party
deliberately to gain time, then the court should lean against acceptance of
the explanation.”
[Emphasis supplied]
8. This Court has also considered the scope of Rules 4 and 9 of Order 22 in
several decisions. We will refer to them. In Union of India vs. Ram Charan
(Deceased) by LRs. [AIR 1964 SC 215], this Court observed thus :
“8. ……The provisions of the Code are with a view to advance the cause of
justice. Of course, the Court, in considering whether the appellant has
established sufficient cause for his not continuing the suit in time or for not
applying for the setting aside of the abatement within time, need not be
over-strict in expecting such proof of the suggested cause as it would accept
for holding certain fact established, both because the question does not
relate to the merits of the dispute between the parties and because if the
abatement is set aside, the merits of the dispute can be determined while, if
the abatement is not set aside, the appellant is deprived of his proving his
claim on account of his culpable negligence or lack of vigilance.
9. It is true that it is no duty of the appellant to make regular enquiries from
time to time about the health or existing of the respondent.”
(Emphasis supplied)”.
6. He submits that this Court can exercise its discretion in view
of the fact that lis is still existing and it has not been closed in view of
further development made on behalf of the respondent no.1. He submits
that there was no intention of malafide and dialectic tactics by the appellant
herein and in view of that the delay may kindly be condoned.
7. On the other hand, Mr. Jay Shankar Tiwary, learned counsel for
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the respondent no.1 opposes the prayer of condonation and submits that
the appeal has already been decided by judgement dated 16.03.2020 and
after much delay the present second appeal has been filed. He further
submits that so far as the sale of the part of the land in question to the
wife of the Presiding Officer who has passed the judgment in the first
appeal is concerned, that is incorrect and only Schedule G property which
was partitioned in favour of Smt. Durga Wala Roy, has been sold to the
father of the respondent no.1. He submits that delay has not been
explained properly in view of that the delay may not be condoned. He relied
in the case of ” “Aamir Sohail and others Vs. Sarwari Begum and others”
(C.M.P. No. 937/2023) decided on 28.03.2025 by this Court. Relying on the
above judgment he submits that in view of the said judgment delay has not
been disclosed and this Court is competent to not allow the condonation
and in view of that the I.A, filed for condonation of delay in filing the second
appeal, may kindly be dismissed.
8. In view of above submissions of the learned counsel of the
parties, the Court finds that admittedly Civil Appeal No. 18 of 2019 and
Civil Appeal No. 19 of 2019 was decided by judgement dated 16.03.2020
wherein finding has been given that sale deed executed in favour of the
appellant herein was correct however possession of the appellant was
denied. The material on record suggests that the mutation was made in
favour of the appellant by the revenue authority and the S.D.M and Deputy
Commissioner have found the possession in favour of the appellant and in
view of that police force was made available to the appellant by the
district administration and subsequently, it has been alleged that
interference was tried to be made thereafter the second appeal has been
preferred and in view of that delay of 537 days has occurred in filing the
second appeal. In this background the court has to consider as to whether a
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case of condonation of delay is made out.
9. The statute of limitation is founded on public policy, its aim
being to secure peace in the community, to suppress fraud and perjury, to
quicken diligence and to prevent oppression. It seeks to bury all acts of the
past which have not been agitated unexplainably and have from lapse of
time become stale in this regard reference may be made to Halsbury’s Laws
of England, Vol. 28, p. 266:
“605. Policy of the Limitation Acts-The courts have
expressed at least three differing reasons supporting the existence
of statutes of limitations namely, (1) that long dormant claims have
more of cruelty than justice in them, (2) that a defendant might
have lost the evidence to disprove a stale claim, and (3) that
persons with good causes of actions should pursue them with
reasonable diligence.”
10. Sufficient cause means that the parties should not have acted
in a negligent manner or there was a want of bonafide on his part in view of
the facts and circumstances of the case or it cannot be alleged that the
parties has not acted deliberately or remained inactive, however, the facts
and circumstances of each case must afford sufficient ground to enable the
court concerned to exercise discretion for the reason that whenever the
court exercise discretion, it has to be exercised judiciously.
11. What has been discussed herein for the delay it transpires that
possession was there and the district administration has also provided police
force to protect the appellant and subsequently interference has been made
and thereafter the appellant has been advised to file second appeal and if
no fault can be laid at the doors of the appellant and cause shown is
sufficient then the courts are required to adopt a liberal approach or justice
oriented approach to condone the delay. The reference may be made to the
case of ” Mool Chandra V. Union of India” reported in 2024 0
Supreme (SC) 636 wherein para 22 and 23 the Hon’ble Supreme Court
has held as under:-
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“22. If negligence can be attributed to the appellant,
then necessarily the delay which has not been condoned by the Tribunal
and affirmed by the High Court deserves to be accepted. However, if no
fault can be laid at the doors of the appellant and cause shown is
sufficient then we are of the considered view that both the Tribunal and
the High Court were in error in not adopting a liberal approach or
justice oriented approach to condone the delay. This Court in Municipal
Council, Ahmednagar and Anr. Vs. Shah Hyder Beig and Ors. 2000 (2)
SCC 48 has held: “6. Incidentally this point of delay and laches was also
raised before the High Court and on this score the High Court relying
upon the decision in Abhyankar case (N.L. Abhyankar v. Union of India
[(1995) 1 Mah LJ 503] ) observed that it is not an inflexible rule that
whenever there is delay, the Court must and necessarily refuse to
entertain the petition filed after a period of three years or more which is
the normal period of limitation for filing a suit. The Bombay High Court
in Abhyankar case [(1995) 1 Mah LJ 503] stated that the question is
one of discretion to be followed in the facts and circumstances of each
case and further stated: “The real test for sound exercise of discretion
by the High Court in this regard is not the physical running of time as
such but the test is whether by reason of delay, there is such
negligence on the part of the petitioner so as to infer that he has given
up his claim or where the petitioner has moved the writ court, the
rights of the third parties have come into being which should not be
allowed to be disturbed unless there is reasonable explanation for the
delay.”
23. Applying the aforesaid principles which we are in complete
agreement to the facts on hand and test the same it would not detain
us for too long to set aside the impugned orders, in as much as the
delay of 425 days in filing fresh O.A. No.2066 of 2020 has been
succinctly explained by the appellant before the Tribunal, namely, it has
been contended that there was no intimation of withdrawal of the
earlier OA by his counsel and the order of withdrawal dated 10.08.2018
does not reflect that such withdrawal was based on any memo duly
signed by the appellant. Further, The High Court has proceeded to
confirm the order of the Tribunal on the footing that penalty imposed
on appellant is only a minor penalty namely withholding of one
increment without cumulative effect, by completely ignoring the fact
that in the earlier round of litigation it had been clearly held that
punishment of dismissal imposed on the appellant was totally
disproportionate to the alleged act.”
12. The proof by sufficient cause is a condition precedent for
exercise of extraordinary 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. What constitutes sufficient cause cannot be laid down by hard
and fast rules. This aspect of the matter has been considered by the Hon’ble
Supreme Court in two of the judgments relied by the learned counsel for the
appellant.
13. The length of delay is no matter, acceptability of the
explanation is the only criterion. Sometimes delay of the shortest range may
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be uncondonable due to want of acceptable explanation whereas in certain
other cases delay of very long range can be condoned as the explanation
thereof is satisfactory. There is no doubt that the limitation is said to be on
public policy, however, rules of limitation are not meant to destroy the right
of parties. The only purpose of limitation is to seen that the parties do not
resort to dilatory tactics but seek their remedy promptly. A Court knows that
refusal to condone the delay would result in foreclosing a suitor from putting
forth his cause. Presumption cannot be drawn in every case that delay in
approaching the court was deliberate. Further, the primary function of a
court is to adjudicate the dispute between the parties and to advance
substantial justice.
14. As discussed hereinabove and the delay explained in the
light of the finding of the learned first appellate court and subsequent
protection provided by the district administration and thereafter interference
made by the respondent no.1, the Court finds that sufficient cause is made
out to condone the delay of 537 days in filing the instant second appeal.
15. So far judgment relied by the learned counsel for the
respondent no.1 in the case of “Aamir Sohail and others” (supra) the
facts of that case was otherwise. In that case second appeal was filed in the
year, 2013 and it was allowed to be defective for years together and in view
that peremptory order was passed inspite of that defect have not been
removed and further that C.M.P. was filed for condonation of delay of 651
days only for restoring of the second appeal. In that background the said
case was decided on the point of limitation. The facts of the present case is
otherwise. It is further well settled that the ratio of the judgement is applied
in the facts and circumstances of each case. In view of that the judgment
relied by Mr. Tiwary is not helping the respondent no.1
16.. In view of above facts, reasons and analysis the delay of
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537 days in filing the second appeal, is hereby condoned. I.A. No. 840 of
2024 is allowed and disposed of.
17. Let this second appeal be placed under Order 41 Rule 11 of
C.P.C.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/-A.F.R
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