JOKHAN Vs. MURTUJA

JUDGEMENT

(1.) This Second Appeal is directed against an order of the learned Additional District Judge, Court No.4 Mau, Misc. Case No.103 of 2018 (Jokhan and ors vs.Murtaza and ors.) rejecting an application to condone the delay in preferring an appeal from the judgment and decree of the Additional Civil Judge (Junior Devision) court no.8 Azamgarh dated 24.01.1998 passed in Original Suit No.540 of 1986.

(2.) Relevant facts for the decision of the second appeal are that respondents-plaintiffs filed a Suit for cancellation of sale deed and injunction against the appellants-respondents. In that original suit the appellants-respondents filed their counter claim seeking relief of possession and injunction against the plaintiffs-respondents. The learned trial court vide judgment and decree dated 24.01.1998 dismissed the original suit as well as the counter claim. This decree was challenged by the plaintiffs-respondents in civil appeal no.54 of 1998 which was later transferred to the District Mau and numbered as Civil Appeal No.20 of 2014 and is still pending. The appellants-defendants preferred an appeal belatedly under Sec. 96 of CPC against dismissal of the counter claim before the District Judge, Mau and to condone the delay also moved an application under Sec. 5 of the Limitation Act on 04.02.2018. The application was supported by an affidavit. This application was assigned to the learned Additional District Judge, court no.4, Mau and its number is 103 of 2018. This application for condonation of delay has been rejected by the impugned order.

(3.) Grounds taken in the accompanying affidavit with application to condone the delay are that applicant/ appellant- Jokhan is an illiterate rustic villager and other appellants are also illiterate villagers. They have no knowledge of law. The trial court dismissed the Suit of plaintiffs-respondents on 24.01.1988 and the appellants were in the impression that the Suit has been dismissed so they have not to take any further action and in this belief they bonafidely were contesting the Civil Appeal No.54 of 1998 (Kamruddin and ors vs. Rojia and ors) and that appeal is still pending in the court of additional District Judge, court no.3 Mau. No decree was prepared in respect of dismissal of counter claim. During preparation of arguments of the appeal in December 2019 the new counsel engaged, told the applicant that they have also to file an appeal against the decree then applicants/ appellants moved an application before the appellate court for preparation of the decree on which the learned appellate court passed the order dated 06.12.2017 that in the decree prepared there is description of counter claim. Then the counsel for the appellant submitted before the court that separate decree is required against the counter claim on which the learned court agreed to consider it. Meanwhile the presiding officer was transferred to other court. Then on the basis of the order dated 06.12.2017, the applicants/ appellants moved an application for obtaining copy of the decree on 08.02.2018. Thereafter applicant/ appellant- Jokhan became sick and unable to move. When he recovered from the illness, then on 02.07.2018 he came to the court and got the appeal prepared and filed it without any further delay. It has also been alleged that delay in preferring the appeal is not deliberate but under bonafide impression. The opposite parties/ respondents filed their objections 9Ga against the aforesaid application and alleged therein that the original suit was decided in the year 1998 in District Azamgarh and Suit of the plaintiffs was well as counter claim of defendants were rejected and decree was prepared. It is specifically mentioned in the decree that Suit of the plaintiffs and counter claim of the defendants are hereby dismissed. The defendants have not preferred any appeal against dismissal of the counter claim. The averments of the appellants that no decree of counter claim was prepared is absolutely wrong. No sufficient reason for delay has been shown. Applicants were aware from the very beginning about the appeal filed by the father of the opposite party. It has also been alleged that as the case has been decided at District Azamgarh the appeal should have been filed in District Azamgarh. On the aforesaid grounds, the opposite parties prayed that application to condone the delay be rejected. The learned Additional District Judge, court no.4, after hearing the both the parties, by the impugned order dated 12.10.2018 has rejected the application to condone the delay.