^^^" ^^t^^";':,~l ^^.^' '^••"' 1 ^ ^' APPELLANT: [plaintiff] RBSPONDENTS: (iDefendanti { IN THE HIGH^OURT OF JUDICATURE AT CHHATTISGARH SECOND APPEAL N0. OF 2006 ^PARAS KUMAR SONI, SON OF SHRI JAGRAM SONI, AGED ABOUT'57 YEARS, RESIDENT OF BUDHAPARA, RATPUR (C.G.) Vs RAIPUR CORPORATION, THROUGH MUNICIPAL RAIPUR; THE COMMISSIONER,. RAIPUR MUNICIPAL CQRPORATION, MALVIYA ROAD, RAIPUR. 2.THE COMMISSIONER, RAIPUR MUNICIPAL CORPORATION, RAIPUR Civil Syit & FirstAppeal was valued SLtRs.800/'^'' ^»-«- Court fee affixed was Rs.80/- This a^peal is also valued a.f Rs.SOCT/- Cdurt fee • affixed is; Ka.SO/^-^ APPEAL XJNDER SECTION lOOOF CODE OF CIVIL PROCEDURE.1908 Being aggrieved. -^ •s? :L HIGH COURTOF CHHATTISGARH AT BILASPUR SECOND APPEAL N0.221 of 2006 Appellant/ Plaintiff Vs. Paras Kumar Sonj Respondents/ Defendants Raipur Municipal Corporation, Raipur and another JUDGMENT POST FOR JUDGMENLOM &09-2006 Sd/- Dhirendra Mishra Judge 'f" (-^ Appellant/ Plaintiff HIGH COURTOF CHHATTISGARH : BILASPUR Second Appeal No. 221 of 2006 ParasKumar Soni -,/ Vs. Respondents/ Defendants Raipur Municipal Raipur and another Corporation, Appellant by Shri B.P. Sharma, Advocate. JUDGMENT (Delivered on /09/200e) Dhirendra Mishra, J The appellant/plaintiff has preferred this second appeal under Section 100 of the Code ofCivil Procedure againstthejudgmentdated 31st March 2006 passed by the learned 14th Additional District Judge (FTC), Raipur in M.J.C.No. 2/06 by which the application under Section 5 ofthe Indian Limitation Act filed by the appellanVplaintiffforcondoningthe delay of 13 days io filing the appeal against the order dated 7.10.2005 passe^ by learned First Civil Judge, Class-1, Raipur,in Civil SuitNo. 446- A/06 has been dismissed and subsequently, the appeal preferredagainst theabove orderhas also been dismissed. (Parties hereinaftershalibe referred to as per their description beforethe trial Court.) 2. The plaintirf filed acivil suiton 25.6.1998 againstthedefendants for declaration that the CQnstruction undertaken by the plaintiff is tegaf and: the defendants do nothave anyriglit to interfere with the said construCti6n_ ^' ".^ ^ underteken by him on his own land andfor injunctionagainst interference in his construction by the defendants or his Subordinate employees/representatives. 3. The defendants submitted their written statement on 13.7.1998 and deniedthe allegations ofthe plaint. 4. The application for temporary injunction of the plaintiff was dismissed vide order.dated 16.10.2001. On the basis of pleadings of the respective parties issues were framed on 2.11.2001. The suitwas posted for recording the evidence of the ptaintiff. However, the leamed triat Court videorder dated 23.8.2005 rejected the application of the piaintiff for adjournment and closed his opportunity for leading evidence and posted the matter for defendants' evidence on 7.10.2005. On that date none appeared on behalf of the plaintiff, as a result of which the suit was dismissed fornon-prosecution. 5. The ptaintiff preferred first appeal under Section 96 of the C.P.C. against the order dated 7.10.2005 of the triai Court on 28.1.2006. Thereafter, an appliGation under Section 5 of the Limitation Act was fited on behalf of the plaintiff on 3.2.2006 for condonatjon of delay as the first appeal was preferred with a delay of 13 days. However, learned Additional District Judge bythe impugned order dismissedthe application for condonation of detay and subsequentty atso dismissed the appeal. 6. Learned counsel for the appellant/plaintiff submits that the first appellate Court was not justjfied in dismissing the appeal aSitl'i^ appeal coutdnot be preferred bythe plaintiff in time becayse at that time'he was ]'!•*!»»*• ^ ^ • t £-. suffering from various physical and mental ailments which is evident from the various treatment papers annexed by the plaintiff along with his appliGation for condonation of delay. 7. Relying uponthe judgment of the Hon'ble Supreme Court in the matter of State of Naaaland Vs. Lipok Ao and others reported in f2005) 3 SCC 752 it is submitted by learned counsel forthe appellant thatthough the proof of sufTicient cause is acondition precedenf for exercise of the extraordinary discretion vested in the Court but, the same shouldbe considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay and the provisions under Sectiort, 5 of the Limitation Act should be construed liberally so as to do substantial justice to the parties and the shortnessof the delay is oneofthe circumstances to be taken into accountin usingthis discretion. 8. Further relying upon the judgment of the Hon'ble Supreme Court in the matter of M.K. Prasad Vs. P.Arumuaam reported in (200t}^_SCC 176 it is argued that while decjding the application under Section 5 and Article 125 of the Limitation Act, the Couri: oughtto keep in mindthe judgmeht impugned, the extent ofthe prpperty inyolved and thestake of the parties while deciding an application under Order 9 Rule 13ofthe C.P.C. and the same shouid be exercised toadvancesubstantial justiee. 9. Placing his reliance on the judgment of the Hon'ble Suprem& Court in the matter of P. Mani MooDanar Vs. K. Raiammal and others reported in f2005) 11 SCG 800 he argued that while considering the applicatioh for condonation of delay, this exercise is limited toexamining suffieieneyof r -K/' v I" cause shown to explain delay and the overall view of the matter on merits cannot be taken. On the basis of above, learned counsel for the appellant submittedthat the following substantial questionsof lawarise for adjudication of this appeat; (1) 'Whether the delay of few days i.e. 13 days only in fjling the appeal istoo inordinate to oust a litigant out ofthe court of justice wh;en the laws laid down in this regard are that the court should ahfl/ays adopt a tiberat view in dealing with the application for condonation of delay and shortness of delay is one of the eircumstances to be taken into consideration in favour of tfte persons seeking condonation of delay?" (2) 'Whether the cause shown by the appellant amounts to sufficient cause within its meaning under the law?" (3) 'Whether advancing substantial justice is prime importance and not technicalities in a court of law and if yes, the finding the courts below in the facts and circumstances ofthecase narrated herein abov®can be sustained testing the finding in the aforesaid touchstone?" 10. ..I have heard learned counsel for the appellant and have gone thrpugh theentire file ofboth the Courts below. 11. From the materia! available on records it is apparent that the opportunity of the plaintiff to teadevidencewas cfosed by thetriatCourton 23.8.2005, the matterwas posted for defendants' evidenceon 7.10.2005 and on that date the suit was dismissed for want of proseeution as Done appeared on behalf of the appellant and thereafter regular appealjwas preferred on 28 January 2006 aindorilyon 3.2.2006 an applJcatioBlfor 11 U.iS %>\ s^- condonation of delay was filed on behalf of the plaintiff which was not supported by affidavitof eitherthe plaintiffor anyother person conversant with the facts of the application. The learned Additional District Judge rejected theapplication after minutely considering the reasons assigned in the application and treatment papers annexed wifh the application by recording a finding that all the documents except the documents dated 22.10.2005 and 20.12.2005, pertainto a period priorto 7.10.2005 when the suit was dismissed and the other documents also do not mention that the appellant could not contact hisadvocate as he wascrjticallyill. The said application is also not supported by affidavit and on the basis of above finding the Court below has held that there is no sufficient cause for delay in filingthe appeal. 12. It is true that what constitutes sufficient cause cannot be laid down by any hard-and-fast ruleand ordinarily shortness ofdelay is one ofthe circumstances for considering sufficiency of the eause andcondoning the delay. Normally, Substantialjustice should be preferred against technical approach. In the matter of State of Nagaland (supra) in paragraph -15 of the judgment it has been held by the Supreme Court that the Court should decide the expression "sufficient cause" with a pragmatic and justice oriented approach rather than the technical detection of sufficient causs for explaining every day's delay an3 the matter should be decided on merits unless the case is hopelessly.without merit. 13. In the matter of P. Mani Mobpnar (supra) the application under Order 9Rule 13 of the C.P.C. forsetting aside the exparte deer^e was rejected bythetrial Court buf the samewas allowed bythe l-lig^ Gourt ^^ without assigning any reason taking overall view ofthe matteF on merits. However, the finding of the High Courtwas set aside by the Supreme Court and the order of the trial Court was restored on the ground that only sufficiency of cause or otherwise shown to explain the delay is to be considered and the same cannot be allowed or rejected and the delay cannot be condoned on taking an overall view of the matter on merits. 14. In the matter of M.K. Prasad (supra) it has been held that while consjdering application for condonation of delay, tMe judgment impugned, , / the extent 6f the properiy involved and the stake of the parties are to be considered when deciding the application under Order 9 Rule 13 of the C.P.C. ' 15. Thus if we apply the principles laid down in the aforesaid judgments of the Supreme Court in the present set of facts, 'it would be evident that the Court belowafter considering the reaspns assigned by the appellant in hjs application for condonation of delay and alsp after considering the documents annexed with his application, has held that the appetlant was negligent in prosecuting the appeal and has faited to make out sufficient cause for condoning the delay. Even otherwise.the appeal preferred by theappellantwashopelesslywithoutmeritashe had preferred a regular civil appeal against the order passed by the trial Court by which his suit was dismissed forwant of prosecution as has been held bythe Suprgm® Court in the mater of State of Naga1and(supra). l 16. On the basis of aferesaid discussions, this Court is of the opjnjon that no substantial question of law as proposed by the appellant is mejde out for adjudication of this appeal and the appeal being devoidjof substance desen/es to be dismissed at the admission stage itself. Accordmgly, it is dismissed. 17. Consequently, IW.C.P.No. 833/06 stands disposed of. SdA DMrendra Mishral Judge ^- -••^;. a