IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.364 of 2009 1. Sahdeo Singh alias Saho Singh son of late Ramautar Singh, resident of village- Madhrapur, Dakhinbari Tola, P.S. and Subdivision- Teghra, District-Begusarai 2. 2. Sudha Devi, widow of Late Shivautar Singh, resident of village- Madhrapur, Dakhinbari Tola, P.S. and Subdivision- Teghra, District- Begusarai Versus Ram Naumi Singh, son of late Brahmdeo Singh, resident of village- Madhurapur Bichla Tola, P.S. Madhurapur, Subdivision- Teghra, District-Begusarai ----------- For the appellants:- M/S Indushekhar Prasad Sinha, Sr. Advocate & Ujjwal Kumar Sinha, Advocate For the Respondent: Dr. Amrendra Kumar and Mr. Manish Rai Sharma, Advocates. ----------- 7. 1.2.2010 The present matter has come up under the heading “For Hearing under Order 41 Rule 11 CPC” but with the consent of the parties, it has been heard at length and is being finally disposed of at this stage itself. The appeal has been filed against the judgment and order dated 26.5.2009 passed by the Additional District Judge VI, Begusarai in Misc. Case No. 1/2009, by which he has dismissed the application filed by the appellants under Order 41 Rule 19 of the Code of Civil Procedure for re-admission of MTA No. 16 of 1992 by setting aside the order dated 7.9.2009 passed in the said appeal, by which the appeal was dismissed for default. The detailed facts have been laid out in the impugned order dated 26.5.2009 of the Additional District Judge himself. The predecessor of the appellants herein had filed MTA No. 16/1992 on 23.6.1992 against the judgment and decree dated 13.6.1992 and 2 26.6.1992 passed in Title Suit No. 112 of 1982. The appeal was pending for argument but from 11.5.1999 on about 15-16 dates the matter had to be adjourned on account of non-appearance of the appellants for which information was also given to the counsel for the appellants. Ultimately, the appeal was dismissed for default on 7.9.1999. The appellants took no step thereafter. Only when the survey knowing Pleader Commissioner went on the disputed land on 22.2.2009 for executing the decree passed in the Title Suit that Miscellaneous Application No. 1/2009 in the said appeal was filed under certain sections of the Code of Civil Procedure but effectively under Order 41 Rule 19 for re-admission of the appeal dismissed for default for non-appearance of the appellants. The stand taken in the restoration application was that the appellant No.1, Shivautar Singh, being about 80 years old, out of religious sentiments went to Ayodhya in May, 1999 and only subsequently on being persuaded by his son, he returned and thereafter died in July, 2002 leaving behind his illiterate widow Sudha Devi, a son Ram Sewak Singh who also died in 2003, and a minor son who was also traceless for two years. It was further stated that appellant no. 2, Sahdeo Singh who was the nephew of appellant no. 3, also became seriously ill in 1997 itself and treated at Patna and Delhi but his health deteriorated and he can walk with the help of some other person with difficulty and out of frustration all documents related to his treatment was destroyed by him except one. It is further stated that the four sons of Sahdeo Singh were also 3 ignorant about the appeal and not in a position to take any steps in the case. Ultimately, when the survey knowing Pleader Commissioner along with other authorities came at the suit property on 22.2.2009, the appellants made enquiry and learnt about the dismissal of the appeal and accordingly Miscellaneous Application No. 1/2009 was filed for re-admission of the appeal along with a limitation petition. Learned court below did not consider the grounds mentioned by the appellants as sufficient for re-admission of the appeal and was of the view that aforesaid grounds had been taken only for the purpose of re-admission and were unbelievable. He was also of the view that the entire attempt of the appellants was to make the decree passed in the Title Suit futile and meaningless. For the said reason, the Miscellaneous case was dismissed at the outset without admitting the same and issuing notice to the opposite parties. Learned counsel for the appellants submits that the impugned order dismissing the petition for restoration is arbitrary and unjustified as it is not based on any reason for disbelieving the unchallenged facts stated in the petition on affidavit for restoration as have been mentioned above. It is further submitted by learned counsel that the power under Section 5 of the Limitation Act has been given to the trial court to do substantial justice to parties by disposing of matters on merits as held by the Apex Court in the case of Collector, Land Acquisition Vs. Katiji: (1987) 2 SCC 107, that the Courts are required to adopt liberal approach in the matter. Learned 4 counsel also relies upon various other decisions of the Supreme Court and of this Court where a similar liberal approach has been propounded, namely, Baleshwar Mochi Vs. Kundan Devi: 2001(3) PLJR 754, Sachidanand Singh Vs. State of Bihar & Ors.: 2002(1) PLJR 409, Ganesh Prasad Vs. Lakshman Prasad & Ors: 2005(2) PLJR 351, Ram Sumiran and Ors Vs. DDC & Ors: (1985) 1 SCC 431 and State of Karnatka Vs. Y.Moideen Kunhi: 2009 AIR SCW 4491. Learned counsel for the respondent, on the other hand, submits that the court below was fully justified in not permitting the re-admission of an appeal which has been dismissed for default after giving 15-16 opportunities to the appellants, nearly 10 years back. It is further submitted by learned counsel that not even a shadow of evidence has been produced by the appellants in support of the various facts stated by them and all those facts have been merely concocted in order to boost up their case for restoration. It is pointed out that the documentary evidence regarding treatment, which could have been shown for the benefit of the appellants, have been conveniently said to have been destroyed out of frustration by the original appellant no.2 in the court below. It is further submitted by learned counsel that the Title Suit itself was originally filed for the eviction of the defendants-appellants from the house of the respondent, and was only subsequently converted into a suit for declaration of title and restoration of possession, and having lost the title suit, the sole attempt of the appellants was to somehow or the 5 other delay the matter so that the fruits of the litigation may not be obtained by the respondent even after 28 years of the filing of the title suit. On a consideration of the entire facts and circumstances, this Court does not find any reason to disagree with the findings recorded by the learned court below. It is true that the courts including this Court adopt a liberal approach in the matter of condoning delay in the filing of appeals, etc., but the same does not mean that condonation of delay can be claimed as a matter of right even if gross laches are committed by the appellants. Even in Most. Katiji’s case (supra) while holding that a liberal approach ought to be adopted in condoning delay on principle, the Apex Court stated that ordinarily a litigant does not stand to benefit by lodging an appeal late and that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides as a litigant does not stand to benefit by resorting to delay; in fact he runs a serious risk. In the present matter, it is evident that the appellants have benefited by remaining quiet in the matter for a period of ten years and they cannot claim the benefit of what was decided in Most. Katiji’s case (supra). In fact, in the said case the appeal in question was dismissed as time barred by the court below although it was only four days beyond time. No doubt in some of the decisions cited by the appellants, there has been condonation of delay even after six years, like Ram Sumiran’s case (supra) where the question was with 6 respect to allowing a substitution petition. Similarly, a delay of nearly 18 years was condoned in Y. Moideen Kunhi’s case (supra) relied upon by the appellants but that was in the special facts of the case as the appeal by the State of Karnataka involved public interest relating to a very large area of land. None of those considerations apply to the present matter where the appellants simply left their appeal to be dismissed for default and remained in stupor for about ten years and ultimately woke up when the Pleader Commissioner went to the spot in the execution case filed by the respondent. They have definitely been beneficiaries of the delay caused by them. Moreover, as rightly pointed out by learned counsel for the respondent, there is not even an iota of concrete evidence in support of the facts stated in the restoration application and it is not open to learned counsel for the appellants to contend that the statements on affidavit were unchallenged facts and cannot be disbelieved when the court below did not find the case fit enough even for issuing notice to the respondents and dismissed it at the outset. Thus, in the aforesaid facts and circumstances, there is no merit in the appeal and it is accordingly dismissed. S. Pandey (Ramesh Kumar Datta, J.)