Judgment and Order (Oral)
1. Heard Mr. H. Das, learned counsel for the appellants. None appears for the respondent/plaintiff despite service of notice.
2. Mr. Das has submitted that the names of appellant Nos.1 and 2 may be struck off as they did not prefer any appeal before the first Appellate Court. Accordingly, their names are struck off. Registry will take consequential steps.
2. This appeal is directed against the judgment and decree dated 08.06.2005 passed by the learned Civil Judge (Sr. Divn.), Goalpara, in Title Appeal No.13/2004, affirming the judgment and decree dated 24.12.2003 passed by the learned Civil Judge (Jr. Divn.) No.1, Goalpara, in Title Suit No.27/2001, whereby plaintiff s suit for right, title, interest and recovery of khas possession as well as cancellation of registered sale deed No.773 dated 23.09.1998 was decreed against the defendants.
3. Against the judgment and decree of the learned Trial Court, an appeal was preferred by eight of the defendants accompanied by an application for condonation of delay.
4. The appeal was admitted keeping the point of limitation open to be taken up at the time of hearing. Thereafter, the appeal was dismissed not on merit but on the ground that appellants had failed to show sufficient cause for not preferring the appeal within the period of limitation and on the ground that the affidavit in support of the application for condonation of delay was not in conformity with Order 19 Rule 3 CPC. Reliance was placed on a judgment of this Court in the case of Muktinath Das vs. Smt. Brinda Das, reported in AIR 1990 Gauhati 10 as well as in the case of G. Ramegowda, Major vs. The Special Land Acquisition Officer, Bangalore, reported in AIR 1988 SC 897(1).
5. The second appeal was admitted to be heard by an order passed on 06.01.2006 on the following substantial questions of law:
1. Whether on the explanation put forward by the appellant for condonation of delay, the learned Appellate Court on the facts and circumstances ought to have condoned the delay ?
2. Whether on correct interpretation of law laid down in Mukti Nath Das Vs- Smti. Brinda Das reported in AIR 1990 Gau 10, the Appellate Court was right in holding that the affidavit in support of Condonation petition was not made in conformity with Order 9 Rule 3 CPC and therefore the appeal is barred by limitation ?
3. Whether on correct interpretation of law laid down in G. Ramagawde Vs- The Special Land Acquisition Officer, Bangalore reported in AIR 1988 SC 897 the Appellate Court on the facts and circumstances of the instant case was right in holding that there was gross negligence or deliberate inaction on the part of appellant in not preferring the appeal in time ?
6. Mr. H. Das, learned counsel for the appellants has submitted that the defendants had entrusted defendant No.1, who was the eldest amongst all the male defendants, to take steps in the proceedings before the learned Trial Court and they had relied upon him and the counsel engaged by them and that they were not informed about the fate of the suit and they came to learn about the decree passed against them only when the Process Server of the court came for execution of the decree. They immediately applied for the certified copy and the same was received on 06.10.2004 and thereafter, the appeal was filed on 17.11.2004. It is submitted by him that there is no laches or negligence on the part of the appellants and the learned lower Appellate Court was wholly in error in dismissing the application for condonation of delay by holding that the appellants failed to show sufficient cause and that the affidavit was defective. Accordingly, he submits that impugned judgment of the learned lower Appellate Court is required to be interfered with and that the case be sent back to the learned lower Appellate Court for fresh disposal in accordance with law after condoning the delay in preferring the application for condonation of delay.
8. I have considered the submission of the learned counsel for the appellants and have perused the materials on record.
9. In the application under Section 5 of the Limitation Act read with Section 151 CPC, as submitted by Mr. Das, plea was taken that the defendant No.1, who was the eldest amongst all the male defendants, used to take steps for and on behalf of all the appellants and he had engaged one Mr. P.C. Pathak as the counsel. The appellants are uneducated village people and they fully relied upon the defendant No.1 and the counsel. They never informed the appellants about the outcome of the suit and in such circumstances, only at the time when the Process Server came for execution of decree, the result of the suit was known to them and by the time the appeal was filed, there was delay of about nine months.
10. In G. Ramegowda, Major (supra), the Apex Court had laid-down that it if there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. While emphasizing that each case will have to be considered on the particularities of its own special facts, it is also impressed upon that the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and that, generally, delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of the delay.
11. In Muktinath Das (supra), this Court laid-down that when averments are made which is not based on personal knowledge, the source of information should be clearly disclosed in the affidavit and in the said case, as the source of information was not disclosed, this Court affirmed the decision of the first Appellate Court rejecting the appeal as barred by limitation.
12. Order 19 Rule 3 CPC runs as follows:
Matters to which affidavits shall be confined.-(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.
13. It must be noted at this stage that in second substantial question of law, inadvertently Order 9 Rule 3 CPC was written instead of Order 19 Rule 3 CPC.
14. In the instant case, the statements made in the condonation application were sworn as based on knowledge and not on information and therefore, reliance placed on Muktinath Das (supra) by the learned lower Appellate Court is clearly misconceived.
15. The next question that arises for consideration is as to whether grounds cited in the application for condonation of delay can be construed as sufficient cause within the meaning of Section 5 of the Limitation Act. At the outset, it must be noted that the appellants before the learned lower Appellate Court filed the appeal without any further delay after they professed to have come to know about the judgment and decree of the learned Trial Court. Defendant No.1 was not an appellant before the learned lower Appellate Court. It is also to be emphasized that no objection was filed to the application for condonation of delay. The learned lower Appellate Court found fault with the appellants for not taking steps individually and not keeping track of the suit. While, ideally, parties to the proceedings should take steps independently, this Court cannot not gloss over of the fact that in the village areas one of the parties are generally entrusted with taking of day-to-day steps. There is no denial to the averments made in the application that the appellants are illiterate rustic people or that the plea taken by them is false. The expression sufficient cause in Section 5 of the Limitation Act must receive liberal construction.
16. In the attendant facts and circumstances of the case, it cannot be said that there was gross negligence or deliberate inaction or lack of bona fide on the part of the appellants in approaching the Court after expiry of the period of limitation.
17. In view of the above discussions, I am of the considered opinion that this appeal deserves to be allowed. Accordingly, the impugned judgment and decree of the learned lower Appellate Court is set aside. Delay in preferring the appeal is condoned and the learned lower Appellate Court is directed to dispose of the appeal on merits. Substantial questions of law are answered accordingly in the light of the above discussions. No cost.
18. Registry will send back the records.