Municipal
Corporation, Gwalior Vs. Ramcharan (D) by Lrs. & Ors
[2002] Insc 213 (24
April 2002)
R.C.
Lahoti & D.M. Dharmadhikari R.C. Lahoti, J.
Leave
granted.
A suit
for declaration of title and recovery of possession filed by the
plaintiff-respondents was dismissed by the trial Court but decreed in appeal.
The Municipal Corporation, the appellant before us, filed a second appeal in
the High Court. There was a delay of 39 days in filing the second appeal. The
memo of appeal was accompanied by an application under Section 5 of the
Limitation Act seeking condonation of delay in filing the second appeal. The
reason set out for condonation of delay was that the Municipal Corporation had
appointed an advocate to appear on its behalf who failed to appear in the first
appellate Court when the appeal was heard, on account of some confusion in
noting the date of hearing in the court case diary maintained in the office of
the advocate and it was the belated knowledge of the judgment and decree of the
appellate Court on the part of the advocate, and consequently on the part of
the Municipal Corporation, which had caused the delay in filing the appeal.
Affidavits
by the Revenue Officer and the counsel representing the Municipal Corporation
were filed in the High Court. The application was vehemently contested on
behalf of the plaintiff-respondents. The High Court formed an opinion that
sufficient cause within the meaning of Section 5 of the Limitation Act was not
made out and, therefore, directed the application under Section 5 of the
Limitation Act to be dismissed and consequent thereupon the appeal itself was
dismissed as barred by time. The Municipal Corporation has filed this appeal by
special leave.
The
contest before this Court has been more vehement than what it appears to have
been before the High Court. It is true that sanctity attaches with the record
of court proceedings. However, in the present case the question is not so much
of casting a doubt on the record of proceedings maintained by the Court as is
on testing the bona fides of the counsel who filed his own affidavit in support
of the application under Section 5 of the Limitation Act. The counsel and the
Revenue Officer, who filed their affidavits, do not have any personal interest
in the matter. The learned advocate appearing for the Municipal Corporation was
not going to gain anything either by remaining absent at the time of hearing of
the first appeal or by assigning a false cause for his non-appearance at the
time of hearing.
Valuable
rights of the parties in an immoveable property are involved.
On the
totality of the facts and circumstances of the case, we are of the opinion that
the High Court ought to have been taken a liberal, and not a rigid and too
technical a view of the issue before it and should have condoned the delay in
filing the appeal and concentrated on examining whether the appeal raised any
substantial question of law worth being heard by the High Court. In our
opinion, a sufficient cause for condoning the delay in filing the appeal before
the High Court is made out.
The
appeal is allowed. The impugned order of the High Court is set aside. The
appeal is restored on the file of the High Court. The delay in filing the
appeal shall stand condoned. The appeal filed by the Municipal Corporation shall
now be taken up for hearing in accordance with law. No order as to the costs.
..
.......................J.
( R.C.
LAHOTI ) .........................J.
( D.M.
DHARMADHIKARI ) April
24, 2002.
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