^ ,s; ^l/ IN THE COURT OF AT Sin|l»Bench S.A. No._3"^ APPELLANT ...•••*A^ : Shivnandan Gosai/ S/o. Channu Gosai/ ^^> ',rr»r^:'r: .^'^\>^ ^. RE.SPONDENT Jaistambh Cfiowk, Ambikapur, Distt. Surguj'a (C.G.) VERSUS / ^Mangal Prasad Gupta S/o. Rajkumar, Gupta/ Aged about 67 years, R/o. Jaistambh Chowk, Ambikapur, Distt» Surguja (C.G.) SECOND APPEAL UNDER^ECTION^20F THE CHHATTISGARH ACCOMMODATION CONTROL ACT HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No. 37 of200§ Shivnandan Gosai ^ Versus Mang^il Prasad Gupta ORDER ^^ .^ .<^ y. ^. &^ ^v-^ ^ Postfor g"-09-2005 Sd/- Sunil Kumar Sinha Judge ^^ <3P /?.. HIGH COURT OF CHHATTISGARH. BILASPUR Second Appeal No. 37 of200^ Shivnandan Gosai Versus MangEil Prasad Gupta Appearance: Shri Maaoj Paranjpe, counsel for the appellant. Shri Sushil Dubey, counsel for the respoadent. ORDER (g-09-2005) SUNIL KUMAR SINHA. J. (1) During the course of hearing on an application filed under Sectioa 5 ofthe Limitation Act, a short question for consideration has been raised as to what would be the period of limitation for filing an appeal uader Section 32 of the C.G. Accommodation Control Act, 1961? (2) Answering the aforesaid question, this order shall dispose of M.(C.).P. No. 114 of 2005, which is the application for condoaation ofdelay in filmg the S.A. No. 37 of 2005, under Section.5 ofthe Limitation. Act. (3) The appellant has j&led this secoad appeal under Section 32 of C.G. Accommodatiou Coatrol Act, 1961 (hereinafter referred to as the Act). As per office report, this appeal is barred by 540 days of liniitatioa. The appeal has been. filed agaiast the impugaed order dated - z <2P 24.04.2003 passed by the District Judge in Misc. Civil Appeal No. 03/2003 filed under Section 31 ofthe aforesaid Act. It appears that the Reat Coatrollmg Authodty, Ambikapur, District-Sarguja passed an order dated 27.1.2003 in case No. 4/B/121/1999-2000 for fixation of standard rent under Section 10 ofthe aforesaid Act. The said order, passed by the Rent Cotitrolling Authority was challenged by both the parties in two different Misc. Appeals bearing No. 2/2003 and 3/2003 before the District Judge, Ambikapur and the District Judge disposed of both the appeals by impugaed common order dated 24.4.2003 against which this secoad appeal has been filed by the tenaat. (4) The explaaation for delay caused in filing the second appeal has been given in. the application. It is conteaded by the appellant that the appellant is a poor persoii. Due to financial crisis^ fiaaacial clutches aad illiteracy, the order passed by the District Judge oa 24.4.2003 could not be challenged, therefore, the appellant approach his advocate aad thereafter^ an application uader Order 23 Rule 3 read with Section 151 of C.P.C. was filed by the appellant before the DLstrict Judge on aa advice given to him by his local counsel. This application was filed on 17.10.2003. The said application was registered as M.J.C. No. 49/2003. This MJ.C. was dismissed by the District Judge on 21.8.2004 holding that after disposal ofthe appeal under Sectioa 31 ofthe Act, such application before the same Court would not be maintamable. It is fiirther submitted that thereafter a revisioa under Section 115 ofC.P.C. was filed against the said order passed in MJ.C. before the High Court and wheti this revision came up for hearing on 6.1.2005 vide Civil Revision No. 161 of 2004, the same was withdrawn with a liberty to take appropriate recourse in accordance with law. (5) Leamed counsel for the appellant submits that after withdrawal ofthe revision on 6.1.2005, this second appeal, against the appellate order passed by the District Judge oa 24.4.2003 was filed on 3- 17.1.2005 with an application for coadonation ofdelay uader Section 5 ofthe Limitation Act. He submits that in the aforesaid manner, the delay of 540 days in filing the present appeal is explaiaed and the sameshould be coadotied> (6) Oa the other hand, leamed couasel for the respondent, after filmg a reply to the aforesaid application uader Section 5 of the Lim.itatioa Act, has opposed this application for coridoaation ofdelay. It is contended by hwa. that the appellaat is a rich person having two houses in. his owiiership in the township of Ambikapur worth Rs. 2 lakhs. He has two sons who are also eaming, therefore, the question of tiot approaching to the High Court due to final crisis is incorrect. It is submitted that the appellaat has aot shown sufi&cietit cause to coadoae the delay in filing the present appeal as much as each day ofdelay has aot been explained by him and his application which is not boaaffle, deserves to be dismlssed. (7) I have heard leamed counsel for the parties at length aad have also perused the records ofthe secoad appeal. (8) The first question. arises for consideratioa is about the period of limitation for filiag a second appeal under the Act. The aforesaid Act, does aot prescribe specified period of Hmitation for filiag a second appeal under Section 32. Therefore, as to what would be the penod of limitation for fiilmg aa appeal before the High Court is a point raised for consideratioa. (9) In the ALR 1953 SC 357 (National Sewins Thread Co. -Vs- James Chadwick and Bros.), the Apex Court while dealing a matter about mairitamability of the letters pateat appeal in the matters of Trade Marfci Act (1940) after disposal ofthe first appeal by the High Court determined that since the provision of Trade Marks Act provides for an appeal to the High Court and nothing more, then a letters patent appeal would lie against the judgment ofthe High Court -4- ® because of there being nothing to the contrary in the Trade Marks Act. The reasoning given by the Apex Court is that after an appeal reaches the High Court, under the statute, it has to be determined according to the rules ofpractice and procedure ofthat Court and in accordance with the provisions ofthe charter under which that Court is coastituted and which confers oa it power in respect to the method and manaer ofexercisiag that jurisdiction. Therefore, ifSection 76 of Trade Marks Act confers a right ofappeal to the High Court and says nothing more about it, then, that being so, the High Court being seized as such ofthe appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same maan.er as it exercise its other appellate jurisdictioa aad when such jurisdiction is exercised by a siugle judge^ his judgment becomes subject to appeal uiider clause 15 ofthe Letters Patent as there being aothing to the contrary to it in the Trade Marks Act> (10) This analogy laid down by the Apex Court about mamtainability of letters patent appeal against the judgment of the Trade M.aiks Act by the single judge is based upon the logic that once the High Court exercises its appellate jurisdiction conferred under a particular Act and the Act says aothing contrary to the general appellate jurisdictioa exercised by the High Court, the High Court has to exercise its junsdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a sitigle judge, his judgment becomes subject to appeal under the letters patent. (II) Applying this analogy, if we determine the nature of jurisdiction vested by the aforesaid Act to the High Court for hearing second appeals under Section 32 ofthe said Act, it would appear that if nothing contrary is prescribed in the special Act about special nature ofjurisdictioa to be exercised by the High Court while hearing a second appeal filed by the appellant then according to the principles rm -5- c^ ,^. 'K ofpractice and procedure, the High Court would exercise its appellate junsdiction ordmadly to hear the second appeal presented before it. Certaiuly this junsdictioii to hear a second appeal under Section 32 of the Act would be analogous to Sectioa 100 ofC.P.C and the limitation prescribed for hearing a second appeal under Section 100 ofthe Code of Civil Procedure would be applicable to the second appeals filed under Section 32 ofthe aforesaid Act. Therefore, I hold that when. the substantial Act i.e. C.G. Accommodation Control Act, 1961, does aot prescribe a period of limitatiou for filing a second appeal uuder Section. 32 of the said Act before the High Court aad the Act says nothiag more about jurisdictioa of the High Court, then the High Court, according to the rules of practice and procedure of the Court aad iu accordance with the provision. of the charter under which this Court is constituted aad which. confers oa it power in respect to the method and manaer ofexercising thatjurisdiction will hear the second appeal, and the period of limitation prescribed for hearing of appeals under the Code of Civil Procedure in Article 116 of Limitation Act, l963would also be applicable in case ofappeals j&led uader Section 32 ofthe Act (12) Now second question arises as to whether the appellaut has satisfactorily explained the delay of 540 days ia filing ofthis appeal? Evea iffor the sake ofargumeut we condone the delay ofsuch period which the appellant has exhausted ia fighting litigation in various ottier courts having no jurisdiction treating it to be bonafide, ttie delay from 24.4.2003 to 17.10.2003 i.e. from the date of impugned order passed by the District Judge to the date of filing of an applicatioa uader Order 23 Rule 3 of C.P.C. etc. has not been explained. The appellaat has takea a ground that due to poverty and finaacial crisis, he could not file an appeal again.st the order passed by the District Judge in Misc. Appeal NoJ/2003 and he approached to his local counsel, who advised to file an applicatioa ofsuch a nature before the same Court. This argument advanced by leamed counsel for the 4 appellaat cannot be accepted. It is unbelievable that the appellant could not approach to the High Court or the appropriate foruni due to fiaaadal crisis. In the facts and circumstances of the case, when the appellant, having been lost in the MJ.C., filed before the Distnct Judge, had approached the High Court by filing a civil revision a^iiist the said order vide C.R. No. 161 of 2004, then he could have availed his correct remedy earlier also. When the appellant could come to the High Court at this later stage for filing the civil revision No. 161 of2004 after being willfully participated in a long life secoad rouiid of litigation in the same court enjoyiag the possession of a tenanted premises wliich was in fact a nullity for want ofjurisdiction then he was able to approach this Court on the earlier occasions also Le. iu between 24.42003 to 17.10.2003 for filing a second appeal uuder Section 32 of the Act which he has filed after being unsuccessfi.il in MJ.C. No. 49/2003 before the District Court and in civil revision No. 161 of2004 before this Court. (13) It has been held by the Apex Court in the niatter otRamlaland others, AjppeUants -Vs- Rewa Coalfields^td^ reffortedmAIR1962 *S>. C. ^^7 that m cotistruing section 5, it is relevant to bear in mind two importaat consideratioiis. The first consideration is that the expiration ofthe period oflimitation prescribed gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideratioa which camiot be ignored is that if sufficieat cause for excusiag delay is showa discretion is givea to the Court to condone delay. This discretioa has been deliberately conferred oa the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. 7- 1[ 1'''" This has been held by the apex Court after quotmg an observation made by the Madras High Court in the matter ofKrishna -Vs- Chafhappan^ ILR 13 Madras 269 which reads as under; "Section 5 gives the Court a discrefion which in respect ofjurisdiction is to be e^rcised in the way in which judicial power and discretton ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justtce when no negligence nor inaction nor want of bonc^de is imputable to the appellant" (14) The apex Court agaia held in the matter of The State of West Bensal -Vs- The Adminvstrator^ Hawrah Municipalitv and others reported in (1972) l SCC 366 that the words "sufficient cause" in section. 5 ofthe Limitatioa Act should receive a liberal construction so as to advance substantial justice when no negligeace or inaction or waat ofboaafide is imputable to a party. (Please see Para 30 ofthe said judgment). (15) It has beea further held m the matter o G.Rantesowda^ Major and^ofhers^-Vs-SifecwlLandAcQuisifion Officer^ Bansalore (1988} 2 SCC 142 vide para 14 that there is no geaeral priaciple saving the party from all mistakes of its counsel. Each case will have to be considered oa the particularities of its own spedal facts. However, the expressioa 'suf&cient cause' in Section 5 must receive a liberal construction so as to advance substaatial justice and geaerally delays in preferriag appeals are required to be condoned in the interest of justice where no gross negligence or deliberate maction or lack of bona fides is imputable to the party seeking condonatioa ofthe delay. (16) It has also been held m the matter of M Balakrishnan -Vs- ^Krishnaitwrthv (1998) 7 SCC 123 that "the law of limitation is 1-, fouaded oa public policy. It is enshrined in the maxim interest reipublicae up ssf finis litium (it is for the general welfare that a period be put to litigation). The mles of limitatioa are not meant to destroy the rights ofthe parties. They are meant to see that parties do aot resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period oftime." The Apex Court also held that "the length ofdelay is no matter, acceptability of the explaaation is the only criterion. Sometimes delay of the shortest range may be uacondonable due to want of acceptable explanation whereas ia certain other cases, delay of a very long range can be condoned as the explanatioa thereof is satisfactory." (17) If we analyze this case oa above principles and take into cousideration the period fi-om 24.4.2003 to 17.10.2003, it would appear from Annexure-A/3 (certified copy of impugned order) that an application for obtaimiig certified copy of the impugned order date 24.4.2003 was filed on. 28.4.2003 and the copy was ready for delivery on 30.4.2003. If we exclude these 3 days and one day of order aad also 90 days of Umitation for filing this second appeal, even then, the delay of 82 days are not at all explained oa the record ofthis case. In the arguinents leamed counsel for the appellaat submitted that due to finaiicial crisis and poverty, the appellant could not reach to the High Court but he had aot said that the appellaat or his local counsel were having no knowledge about the fact that a secoad appeal is to be filed before the High Court and MJ.C. or Civil Revision etc. were aot maintamable. (18) Therefore, I am coastrained to hold that in fact, there is no substantial explanatioa ofthe delay ofabout 82 days as each days delay commeticing from 24.4.2003 to 17.10.2003, excluding the period of90 days ofnormal Umitation and also the copying days have aot been. explaiaed in this matter. I also hold that the period exhausted F -'?- in coatestiag the case in different Courts aad the delay caused on account ofthe proceedmgs before the Courts withoutjurisdiction from 17.102003 to 6.1.2005 are not bonafide as the same cannot be classified as the expression. "sufi&cient cause" shown. in Sectioa 5 of the Limitation Act. It is a case of gross negligeuce aad deliberate wrong step/action taken aad lack of boaafide is imputable to the appellant. (19) The application filed under Section 5 ofthe Limitation Act vide M.(C.).P. No. 114 of2005 is dLsmissed. In consequence, this appeal is ^"^. dismissed being barred by liniitatioa. No costs Sd/- Sunil Kumar Sinha ' Judge vatti