[1] SB CIVIL SECOND APPEAL 160/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. CIVIL SECOND APPEAL NO.160/2009 BALU RAM & ANR. Vs. GHASI RAM DATE: 01.11.2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Babulal Saini, for the appellants. Mr. Hemant Gupta for Mr. Vibhuti Bhushan Sharma, for respondent. **** Heard the learned counsel for the parties. 2. This appeal is barred by 1088 days. Learned counsel for appellants has moved an application under Section 5 of the Limitation Act for condonation of delay of 1088 days in filing the second appeal. The appellants have explained the delay in para Nos. 2 to 6 of the application, which are reproduced as under:- “2. That the limitation for filing the appeal is 90 days and the appeal has been filed with delay. 3. That the appellants are illiterate persons and are villagers. They are living in village Chhapoli and the appeal was filed by the plaintiff/appellant at Jhunjhunu and was pending there. [2] SB CIVIL SECOND APPEAL 160/2009 4. That the appellants came to know about the decision of the appeal filed by the plaintiff/respondent only when the execution warrant of the decree has been issued by the executing court. No information was ever received by the appellants from their counsel regarding decision of the appeal against them. The appellants were in this impression that the appeal was pending, whereas the appeal was decided on 07.12.2005 and after knowing the decision of the appeal, they applied for certified copies of the judgments and after receiving the certified copies of the judgments and decrees they rushed to Jaipur and contacted their counsel to file the appeal before this Hon'ble Court. 5. That the counsel for the appellants after receiving the certified copies of the judgments drafted the appeal and thereafter without any further delay filed the appeal before this Hon'ble Court. 6. That delay in filing the appeal is bonafide and not intentional, therefore, looking to the facts and circumstances of the case and in the interest of justice, it will be just and proper to condone the delay in filing the appeal.” 3. A bare perusal of aforesaid facts/explanation mentioned in the application will reveal that appellants have not mentioned the date of knowledge of Appellate Court's judgment, date of knowledge of execution warrant, nor any date has been [3] SB CIVIL SECOND APPEAL 160/2009 mentioned as to when they met their Counsel in the First Appellate Court, when the copy was received, when they met their Counsel in the High Court and when appeal was drafted. 4. Appellants have mentioned in para 3 of the application that appellants are illiterate persons and are villagers, but it is not mentioned as to why they did not meet their Counsel in the Appellate Court for a period of more than three years. 5. In para 4 of the application, it has been mentioned that no information was ever received by the appellants from their counsel regarding decision of the appeal against them. In this connection, it is relevant to mention that appellants have not mentioned in their application that their Counsel had assured them not to come and attend the date or dates of the appeal. It is relevant to mention that they have not filed any affidavit of their Counsel stating that he did not inform the appellants about result of the appeal or his letter or message did not reach to appellants. 6. No doubt that if the delay has been explained properly with sufficient reasons, [4] SB CIVIL SECOND APPEAL 160/2009 then delay can be condoned under Section 5 of the Limitation Act, but the said provisions cannot be made redundant by accepting each and every application under Section 5 of the Limitation Act without mentioning proper and relevant facts and making out sufficient ground for condonation of delay in filing the appeal. Delay of 1088 days cannot be said to be ordinary delay and in these circumstances, the delay of 1088 days, in the facts and circumstances of the present case and for the reasons as mentioned in the application, is not liable to be condoned and the appeal deserves to be dismissed only on the ground of delay in filing the appeal. 7. Apart from above, it is also relevant to mention that plaintiff's suit for permanent injunction was dismissed by the trial Court but finding of the trial Court was reversed and plaintiff's suit was decreed by the First Appellate Court. 8. Learned counsel for both the parties have also referred the findings of First Appellate Court and argued the case on merits, but after considering their submissions, I am of the view that issues involved in the present case are relating to [5] SB CIVIL SECOND APPEAL 160/2009 question of facts and finding of First Appellate Court with regard to question of facts is binding and not open to challenge in second appeal under Section 100 CPC. No perversity has been pointed out in the finding of First Appellate Court. None of the questions formulated in the second appeal can be said to be substantial question of law, in the facts and circumstance of the present case. 9. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under: “......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.” 10. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan [6] SB CIVIL SECOND APPEAL 160/2009 Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under: “......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....” 11. The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under: “81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified [7] SB CIVIL SECOND APPEAL 160/2009 in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the Hihg Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.” 12. It is also relevant to mention that learned counsel for appellant has filed an application under Order 41 Rule 27 CPC with a photo-stat copy of the documents. Neither certified copies nor original documents have been placed on record. Even otherwise, the application under Order 41 Rule 27 CPC cannot be entertained in the facts and circumstances of the present case and the same stands dismissed. 13. In view of above discussions, the appeal is barred by 1088 days and no sufficient ground is made out for condonation of delay and since no substantial question of [8] SB CIVIL SECOND APPEAL 160/2009 law is involved in this second appeal, therefore, this appeal is dismissed being barred by limitation as well as on merits also with no order as to costs. (NARENDRA KUMAR JAIN),J. /KKC/ [9] SB CIVIL SECOND APPEAL 160/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL MISC. STAY APPLICATION NO.786/2009 IN S.B. CIVIL SECOND APPEAL NO.160/2009 BALU RAM & ANR. Vs. GHASI RAM Date: 01.11.2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Babulal Saini, for the appellants. Mr. Hemant Gupta for Mr. Vibhuti Bhushan Sharma, for respondent. **** Since the main appeal itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed. (NARENDRA KUMAR JAIN),J. /KKC/