Section 5 of the Limitation Act and declining to condone the delay of 349 days in filing the appeal = The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay. We do not find any perversity or infirmity in the impugned order warranting interference and the appeal is liable to be dismissed

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10379 OF 2018
(Arising out of SLP(C) No. 8586 of 2016)
MOHD. SAHID AND OTHERS ….Appellants
VERSUS
RAZIYA KHANAM (D) THR. LRs
AND ANOTHER ….Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the order dated 15.10.2015 passed
by the High Court of Judicature at Allahabad in Second Appeal
No.819 of 2015 in and by which the High Court affirmed the order of
the First Appellate Court dismissing the application filed under
Section 5 of the Limitation Act and declining to condone the delay of
349 days in filing the appeal.
3. Respondent No.1-Raziya (since dead) filed a Civil Suit No.591
of 1979 against the appellants No.1 to 3 for cancellation of sale
deeds dated 17.02.1979 and 17.05.1979 in favour of the appellants
and for relief of permanent injunction against them over the suit land.
Respondent No.1-Raziya (since dead) contended that appellants No.
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1 to 3 forged documents and executed a bainama of the suit property
in their favour on 17.02.1979. Some part of the suit property was
also sold to appellant No.4-Mahesh by sale deed dated 17.05.1979.
The respondents resisted the suit contending that respondent No.2-
Hadisunnissa executed a Hibanama in favour of respondent No.1-
Raziya Khanam (since dead) on 27.02.1979 of her properties and
building situated in the village Nadva Khas and Revri Dihi and other
villages on 27.02.1979 in the consolidation office.
4. The said Suit No.591 of 1979 was decreed on 16.04.1981
against appellants No.1 to 3 with the observation that they had been
properly served and had appeared and sought time for filing written
statement; but despite ample time being given, they had not filed
written statement.
5. In appeal by appellants, the First Appellate Court noted that
appellant No.3-Mohd. Asid was a minor at the time when the original
suit was filed and the proceeding for appointment of his legal
guardian has not been completed in accordance with law and in
such circumstances, it could not have been possible to have proper
service upon appellant No.3-Mohd. Asid. After considering the
submissions of appellants No.1 to 3, the First Appellate Court vide
order dated 29.11.1985 allowed the appeal and remitted the matter
back to the trial court with a direction to rehear both the parties and
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decide the case on merits with costs of Rs.50/- payable by the
appellants and filing written statement on or before 03.01.1986.
6. Respondent No.1-Raziya Khanam (since dead) filed a Writ
Petition(C) No.19550 of 1985 before the High Court against the
order of the First Appellate Court in which interim order dated
20.02.1985 was passed by the High Court. The said writ petition
remained pending for nearly fifteen years. In the said writ petition,
the appellants herein were neither served nor they entered their
appearance. The High Court noted that the First Appellate Court
recorded a finding that the appellants were not served with notice
and rightly set aside the decree dated 16.04.1981 and remanded
the matter back to the trial court. The said writ petition was
dismissed on 20.02.2001 and order of interim stay dated
20.02.1985 was vacated.
7. The order sheet of the trial court dated 30.05.2011 indicates
the order dated 20.02.2001 passed in Writ Petition (C) No.19550 of
1985 was produced before the trial court. The fact that the order in
the said writ petition was placed before the High Court on
30.05.2011 is clear from the order sheet of the trial court dated
04.03.2011 which reads that “Proceeding of suit is stayed by
Hon’ble Allahabad High Court Record may be produced on
30.05.2011 for further orders.” Before the trial in Suit No.591 of
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1979 was taken up, substitution applications No.113K2, 114G2,
115G2, 116G2 and 117G1 were taken up and orders were passed
on various dates.
8. Though the appellants claimed that they were not present
before the trial court in Suit No.591 of 1979, the order sheet dated
14.10.2011 passed by the trial court in Suit No.591 of 1979 notes
the presence of both the parties in the trial court on 14.10.2011
when the submissions of the parties regarding preliminary issues
were considered and subsequent date i.e. 18.10.2011 was fixed for
cross-examination of PW-1 which according to the respondents, the
appellants had knowledge about the same.
9. Subsequently, the appellants-defendants did not appear in the
suit and the suit was decreed ex-parte on 10.05.2012. The first
appellant-Mohd. Sahid preferred Civil Appeal No.131 of 2013 with
application for condonation of delay of 349 days under Section 5 of
the Limitation Act. In the said application for condonation of delay,
the appellants averred that they came to know about the judgment
of the trial court dated 10.05.2012 for the first time on 06.05.2013
when they went to attend the hearing in another case before the
Sub-Divisional Magistrate and at that time, a constable from Police
Station Ghosi informed him about the said judgment dated
10.05.2012. According to the appellants, after receipt of such
4
information, they contacted their counsel over telephone for
inspection of case file and after inspection on 10.05.2013, they
applied for copy of the same which was received on 18.05.2013 and
the appeal was filed on 22.05.2013 which caused delay of 349 days
in filing the appeal.
10. The application for condonation of delay was dismissed by the
First Appellate Court vide order dated 05.08.2015 on the ground
that the appellants had knowledge about the judgment dated
10.05.2012 passed by the trial court in Suit No.591 of 1979 and that
the appellants were not vigilant, rather they had been negligent.
Pointing out that the appellants made incorrect averments in the
application and that no sufficient and reasonable cause has been
shown by the appellants for the delay, the First Appellate Court
dismissed the application. In appeal before the High Court, the
High Court noted that the reasons stated in the application for
condonation of delay are self-contradictory. The High Court referred
to the order sheet of the trial court dated 14.10.2011 which notes
the presence of both the parties in the trial court on 14.10.2011 and
the respondents-plaintiffs evidence in the form of affidavit and that
the matter was fixed on 18.10.2011 for cross-examination of PW-1
which clearly shows that the appellants had full knowledge about
the proceedings in the Suit No.591 of 1979 and also about the
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dismissal of the Writ Petition (C) No.19550 of 1985. The High Court
dismissed the Second Appeal No.819 of 2015 observing that the
order of the First Appellate Court does not suffer from any factual
error or illegality and that no substantial question of law arises in the
Second Appeal.
11. We have heard Mr. Yatindra Singh, learned senior counsel
appearing on behalf of the appellants and Mr. U.K. Unniyal, learned
senior counsel appearing on behalf of the respondents at length
and perused the impugned order and materials placed on record.
12. In the application No.4-C for condonation of delay, the
appellant No.1-Sahid has stated that he got knowledge about the
decree and order dated 10.05.2012 passed in Suit No.591 of 1979
when the applicant had gone in pairvi on 06.05.2013 before the
Sub-Divisional Magistrate and a constable of the Police Station,
Tehsil Ghosi gave information about the order. The appellant further
averred that on 06.05.2013, he had left to Lucknow from Ghosi and
on 09.05.2013 he contacted his counsel and thereafter applied for
certified copy which was received on 18.05.2013 and the appeal
was filed on 22.05.2013 which caused the delay of 349 days in filing
the appeal.
13. After referring to the averments in the application 4-C, the
High Court noted that the appellant-defendant was in Lucknow from
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03.05.2013 to 09.05.2013 and therefore, it was quite improbable
that the constable of the Police Station, Ghosi, District Mau could
have informed the appellant about the judgment of the trial court in
Tehsil Ghosi on 06.05.2013 and the said contradictory averment
was not explained by the appellants during arguments.
14. In his application 4-C filed under Section 5 of the Limitation
Act, the appellant has not stated that he was in Lucknow from
03.05.2013 to 09.05.2013. Hence, the observation of the High
Court in para (6) does not reflect the averments in the affidavit of
appellant Sahid. It was in this context, notice was issued by this
Court vide order dated 11.04.2016 on the ground that “the factual
position depicted in paragraphs (6) and (7) of the impugned order is
false and incorrect.” The observation of the High Court that the
appellant-defendant was in Lucknow from 03.05.2013 to 09.05.2013
though may not reflect the averments in the application for
condonation of delay, in our view, does not affect the correctness of
the impugned order.
15. The statement of the appellants that they got knowledge
about the judgment of the trial court in Suit No.591 of 1979 dated
10.05.2012 for the first time on 06.05.2013 is incorrect. As pointed
out by the First Appellate court as well as by the High Court,
certified copy of the order sheet dated 11.10.2011 and 14.10.2011
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in Suit No.591 of 1979 shows that on 11.10.2011, parties were
present in the trial court and the attention of the court was drawn by
the respondents-plaintiffs regarding the order passed in Writ
Petition(C) No.19550 of 1985 (20.02.2001). On 11.10.2011, the
trial court heard the parties for deciding the issues No.2 and 3 and
the order sheet indicates the presence of the parties as seen from
the following:-
“Order dated 11.10.2011
…………
Disposal of Issue Nos.2 and 3
Today the parties made the prayer for deciding the issues No.2 and
3 after hearing the same. On the prayer of the parties, both parties
are heard on the issues No.2 and 3 with respect to valuation and
court fee paid and the record is perused.
In this case the issue No.2 was framed – “Whether valuation of this
suit is shown lesser?” and the issue No.3 was framed – “Whether
the court fee paid by plaintiff is deficient?”
No such fact was put up by the parties so that it could appear that
valuation of the suit was not fixed correctly and the court fee paid
was deficient. So in view of the aforesaid facts and circumstances
the issues No.2 and 3 are decided in negative. The record be put
up for recording of the evidence by the plaintiff on 14.10.2011.”
Thereafter, the case was put up for recording of evidence by the
respondent-plaintiff on 14.10.2011. As per the order sheet dated
14.10.2011, the case was called out and the parties were present
and the case was again adjourned to 18.10.2011. On 18.10.2011,
the affidavit of the respondent-plaintiff was filed and thereafter, in
spite of several opportunities, the appellants-defendants did not
appear and the suit was decreed ex-parte on 10.05.2012. In the
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said judgment dated 10.05.2012, the trial court has recorded that in
spite of opportunities, the appellants-defendants did not appear as
seen from the following:-
“In the present case, the defendants have filed their objection at
17 A1 but they had remained absent at the time of adducing
evidence. Therefore, on 09.11.2011, their opportunity of adducing
evidence was closed and they were declared ex-parte and ex-parte
proceeding continued.
………..
In support of their pleadings, the plaintiffs had examined PW-1
Seraj Ahmmed, PW-2 Firoz Alam and PW-3 Salauddin as
witnesses. The evidences on affidavit of these witnesses have
been placed on records as the Document No.120A2, 128A2 and
129A2. The defendants did not remain present for the crossexamination
of the aforementioned witnesses………”
16. After referring to the order sheets dated 11.10.2011 and
18.10.2011 and the subsequent hearings in the Suit No.591 of
1979, the First Appellate Court as well as the High Court rightly
recorded concurrent findings that the appellants had full knowledge
about the proceedings of the original Suit No.591 of 1979 and also
about the vacation of stay order passed in Writ Petition(C)
No.19550 of 1985. The High Court has rightly observed that the
appellants-defendants have not come out with the correct facts.
17. The averments in the application that the appellants got
knowledge about the judgment in Suit No.591 of 1979 dated
10.05.2012 only on 06.05.2013 through a constable is incorrect. On
behalf of the respondents, it is stated that in the proceedings before
the Sub-Divisional Magistrate, the appellants filed the application on
9
23.11.2012 (Objection Paper No.23C2) wherein the judgment dated
10.05.2012 of the civil court was mentioned and it was even averred
that the said judgment was passed wrongly. It is thus clear that the
appellants had knowledge about the judgment and decree in Suit
No.591 of 1979 even on 23.11.2012. While so, the appellantsdefendants
have filed application with incorrect averments that they
got knowledge about the judgment and decree only on 06.05.2013
at Tehsil Ghosi when constable of the Police Station gave them the
information. The High Court rightly rejected the contention of the
appellants that they came to know about the judgment dated
10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a
constable of the Police Station in Tehsil Ghosi, District Mau when he
had gone there to Pairvi in another case.
18. It is also pertinent to note that in Suit No.591 of the year 1979,
the appellants have not filed the written statement in spite of ample
opportunities given and earlier the suit was decreed ex-parte
against them on 16.04.1981. The appellants filed appeal in CA
No.395 of 1981 and it was dismissed for default and the same was
restored on 14.11.1983. By order dated 29.11.1985, CA No.395 of
1981 was allowed and the ex-parte decree dated 16.04.1981 was
set aside and the matter was remanded back for decision on merits
afresh with condition of depositing cost of Rs.50/-. Of course, Writ
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Petition(C) No.19550 of 1985 was filed challenging the same; the
suit being of the year 1979 and earlier being set ex-parte and the
matter having been remitted at the instance of the appellants, the
appellants ought to have been vigilant in pursuing the matter.
19. The order sheet and other materials placed on record clearly
show that the appellants had full knowledge about the proceedings
of the Original Suit No.591 of 1979 and also about the disposal of
the Writ Petition(C) No.19550 of 1985 and the appellants have filed
application for condonation of delay with incorrect facts. Both the
First Appellate Court and the High Court recorded concurrent
findings that the appellants have filed the application for
condonation of delay with incorrect facts and were negligent in
pursuing the matter and rightly refused to condone the delay. We
do not find any perversity or infirmity in the impugned order
warranting interference and the appeal is liable to be dismissed.
20. In the result, the appeal is dismissed. No costs.
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[INDIRA BANERJEE]
New Delhi;
October 10, 2018
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