(A a‘§7§r@ BEFORE THE HON’BLE HIGH COURT OF CHHA’I‘TISGARH AT BILASPUR (C.G.) Singm Bennh SECOND APPEAL NO. g; /2006 APPELLANT / Banke Bihari Bhagwan Mandjr F through — Trustee Shri é/S Agrawal and Kundan Lal Agrawal, Shri Banks Bihari Dev Sthaan Mandir‘Trust, Lakher Oli, Rajpur, Tahsil and District Raipur (C.Cr.) VERSUS RESPONDENT 0/C%Bheemraj, son of Sardarmal Jain fDEFENDANT 3 aged about 50 years, Laggher Oli, Raipur, Tahsil and District Raipur (C.G.) w” SECOND APPEAL UNDER SECTION 100 OF C.P.C., 1908 vy/ n1 A l0“!\f) / PLAINTIF HIE w Banke Bihari Bhagwan Mandir versus Bheemraj JUDGMENT Post for Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra 16-3-201 0 Sd/- l Prashant kumar Mishra Judge Second Aggeal No.85 of 2006 GH COURT OF CHHATTISGARH AT BILASPUR R ‘ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Second Appeal No.85 of 2006 Shri B.P.Sharma with Shri Kshitiz Sharma, counsel for the appellant. Shri Raja Sharma, counsel for the respondent. ‘ Second Appeal under Section 100 of the Code of Civil Procedure JUDGMENT (Delitiered on {67K March, 2010) The instant second appeal under Section 100 of the Code of Civil Procedure has been preferred by the plaintiff challenging the judgment and decree passed by the first appellate Court on 30-11— 2005 in Civil Appeal No.9-A/2004, whereby its application under Section 5 of the Limitation Act for condonation of delay in filing the appeal has been rejected and consequently the first appeal has been dismissed: The trial Court had also dismissed the suit preferred by the plaintiff/appellant. 2. The plaintiff Banke Bihari Bhagwan Mandir preferred a suit on the pleadings'that it is a public trust, which owns the suit property, wherein the respondent/defendant was a tenant. The house celjapsed on account of heavy rains and consequently the tenancy came to an end. The plaintiff prayed for issuance of a permanent injunction to xyé Appellant Banke Bihari Bhagwan Mandir versus Respondent Bheemraj Present: restrain the respondent/defendant from raising any construction over the suit premises/Iand and if any construction is made during pendency of the suit, the plaintiff be handed over vacant possession after demolishing the construction. 3. The respondent/defendant admitted the tenancy, however, he stated that he has a right to get the house repaired under Section 37 of the Chhattisgarh Accommodation Control Act, 1961 and the plaintiff has no cause of action for hling the present suit. 4. The trial Court dismissed the suit after holding that the appellant/plaintiff is not authorised to file the suit. 5. In the first appeal preferred by the plaintiff, there was some delay in filing the appeal, therefore, the appellant moved an application under Section 5 of the Limitation Act for .condonation of delay in filing the appeal. The said application under Section 5 of the Limitation Act was rejected and consequently the first appeal preferred by the present appellant stood dismissed. 6. The present second appeal has been admitted by this Court by formulating the following substantial question of law: “Whether the approach of the first appellate Court in dismissing the application under Section 5 of the Limitation Act not being liberal or pragmatic, in the facts and circumstances was contrary to law? " 7. Learned counsel for the appellant has argued that thé’ first ap ellate Court ought to have allowed the application under Section 5 ’of the Limitation Act and should have condoned the delay as the delay a m \ was not inordinate or enormous. He submits that the appellate Court, by not considering the appiication under Section 5 of the Limitation Act pragmaticaily, has committed serious error of jurisdiction resulting in miscarriage of justice. 8. On the other hand, learned counsel for the respondent has argued that the appellant/plaintiff failed to explain day to day’s delay and since the application under Section 5 of the Limitation Act has been dismissed, it is a question of fact and no substantial question of law is involved. 9. in the application under Section 5 of the Limitation Act filed before the first appellate Court, it was stated that one Shri S.S.Agrawal had moved an application on 11—9—2002 to obtain certified copyof the judgment and decree passed by the trial Court on 5-9—2002. The Senior Advocate believed his juniors till 18-12-2002 and for the first time on 19-12-2002 the Senior Advocate Shri S.S.Agrawal came to know that the application has been withdrawn on 24-9-2002. The Senior Advocate thereafter again applied for grant of certified copy on 20-12-2002, which was received on 28-12—2002 and after coming back from Calcutta on 29-1-2003, where he had gone to attend marriage of a relative, the first appeal was prepared on 3-2-2003 and presented on 4-2-2003. It was stated that the delay is bona fide. The respondent contested the application by submitting that the cause shown for delay in filing the appeal is not sufficient, the facts stated in the application M. are concocted and the application be dismissed. \ \ \ ‘ v \ -4, 10. The first appellate Court, in the impugned judgment and decree, appears to have accepted 'the first part of the expianation offered by the appellant, but it was mentioned that the appellant has failed to explain the delay from 28-12-2002 to 28-1-2003, therefore, the application deserves to be dismissed. Upon perusal of the judgment .and decree of the trial Court, which was annexed with the memo of appeal before the first appellate Court, it would appear that the certified copy was, in fact, obtained on 28-1-2003 and not on 28-12-2002, as has been mentioned in the application for condonation of delay tiled before the first appellate Court. It appears that there was a typographical error in the application submitted before the first appellate Court, which has been explained byrthe appellant herein by submitting an application under Section 151 of the Code of Civil Procedure, 1908 in this Court for correction of his application filed before the first appellate Court. The said application has been numbered as l.A.No.4109/2006. 11. Thus, on bare perusal of the certified copy of the judgment and decree of the trial Court, which was annexed with the memo'of appeal filed before the first appellate Court, it would clearly appear that the findings recorded by the first appellate Court to the effect that the appellant/plaintiff failed to explain the delay from 28-12—2002 to 28-1- 2003 is perverse and is not supported by the material available on record. Since this was the only reason for dismissing the appellant’s application under Section 5 of the Limitation Act, it appears thatxbut for the said mistake the first appellate Court itself would have allowed the application under Section 5 of the Limitation Act. ' 12. Even otherwise, the judgment and decree of the trial Court was passed on 5-9—2002. The first part of the delay has been found to be satisfactory even by the first appellate Court and, thus, in View of the above discussion regarding the second part of the explanation for the period from 28-12-2002 to 28-1-2003, it appears that the appeliant has satisfactoriiy explained the delay and the appellant was able to demonstrate sufficient cause to explain the delay in filing the first appeal. lt is also to be seen that the delay is not enormous. The total period of delay comes to about four months. The Hon’ble Supreme Court in Vedabai alias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil and others, (2001) 9 SCC 106 has held in paragraph 5 of the report that “in exercising discretion under Section 5 of the Limitation Act the courts shou/d adopt a pragmatic approach. A distinction must be made between a case Where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case, no such consideration may arise and such a case deserves a liberal approach. No hard-and—fast rule can be laid down in this regard. The court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression “sufficient cause”, the principle of advancing substantia/justice is ofprime importance. In our view in this case, the approach of the learned Additional District Judge is Wholly erroneous and his order is unsustainable. It is evident that .. “ the discretion under Section 5 of the Limitation Act is exercised by the A \ (b? -p dditional District Judge in contravention of the law laid down by this [V Court, that the expression ”sufficient cause” should receive liberal construction, in a catena of decisions (see State of W.B. v. Administrator, Howrah Municipality, (1972) 1 SCC 366 and Sandhya Rani Sarkar V. Sudha Rani Debi, (1978) 2 SCC 1 16). The High Court in exercising its jurisdiction under Section 1 15 CPC failed to correct the jurisdictional error of the appellate court”. 13. This Court, taking support from the Iaw Iaid down by the Hon’ble Supreme Court in Vedabai alias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil and others (supra), comes to the conclusion that the first appellate Court has not adopted a pragmatic approach while deciding the application under Section 5 of the Limitation Act and thereby resulted in passing an order which is contrary to the facts and thereby committed an error of jurisdiction. The substantial question of law is, thus, answered in favour of the appellant. 14. As a result, the present second appeal is allowed. The impugned judgment and decree dated 30-11-2005 is set aside. The matter is remanded to the first appellate Court for hearing of the first appeal on merits. There shall be no order as to costs. 15. A decree be drawn—up accordingly. Sdl- l ‘, Prashant kumar Mishra Judge Gopal