# Jokhan v. Murtuja & Ors

- **Citation:** (2022) 2 ILRA 714
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** Second Appeal No. 584 of 2021
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jokhan-v-murtuja-ors-47549
- **Pages:** 4

## Headnote

A. Civil Law - - Scope of Second Appeal -
Civil Procedure Code, 1908 - Section 100 -
The appellant has challenged the order dated
12.10.2018/
25.10.2018
by
which
delay
condonation application has been rejected. The
Court held that such an order is not a
decree but only a formal order. The
consequential order of dismissal of first
appeal will come in the purview of decree
but that is not under challenge. The Second
Appeal
is
not
maintainable
against
the
impugned order. (Para 6)

Second Appeal Rejected. (E-10)
List of Cases cited:

## Text

714 INDIAN LAW REPORTS ALLAHABAD SERIES

13. From the aforesaid discussion it is
clear that although the findings recorded by
the court below that articles were given for
their joint use and there is no entrustment
and hence offence under section 406 IPC is
not made out, are not according to law, but
as there is no cogent and sufficient
evidence on the record, the charge under
section 406 IPC is not stands proved and
finding of acquittal recorded by the trial
court cannot be interfered with. The
criminal revision lack merits and is liable to
be dismissed.

14. Accordingly, the criminal revision
is dismissed.

15. Lower court record be transmitted
back to the concerned court below.
----------
(2022)02ILR A714
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Second Appeal No. 584 of 2021

Jokhan ...Appellant
Versus
Murtuja & Ors. ...Respondents

Counsel for the Appellant:
Sri Kashi Nath Shukla, Sri Sneh Ranjan Shukla

Counsel for the Respondents:
Sri Santosh Kumar Rai, Sri Surendra Kumar
Chaubey

A. Civil Law - - Scope of Second Appeal -
Civil Procedure Code, 1908 - Section 100 -
The appellant has challenged the order dated
12.10.2018/
25.10.2018
by
which
delay
condonation application has been rejected. The
Court held that such an order is not a
decree but only a formal order. The
consequential order of dismissal of first
appeal will come in the purview of decree
but that is not under challenge. The Second
Appeal
is
not
maintainable
against
the
impugned order. (Para 6)

Second Appeal Rejected. (E-10)
List of Cases cited:

1. Ishwar Saran Vs Vijay kumar Kushwaha &
ors. Second Appeal No. 1169 of 2018

2. Mata Pher Mishra Vs St. of U.P. & ors. Special
Appeal Defective No. 242 of 2021

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

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 respondentsplaintiffs 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 plaintiffsrespondents. 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
2 All. Jokhan Vs. Murtuja & Ors.
715
Appeal No.20 of 2014 and is still pending.
The appellants-defendants preferred an
appeal belatedly under Section 96 of CPC
against dismissal of the counter claim
before the District Judge, Mau and to
condone
the
delay
also
moved
an
application
under
Section
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
plaintiffsrespondents 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
716 INDIAN LAW REPORTS ALLAHABAD SERIES
dated
12.10.2018
has
rejected
the
application to condone the delay.

4. Learned counsel for the appellants
mainly contended that the appellants could
not understand the effect of judgment and
decree passed by the trial court by which
counter claim was dismissed, therefore,
could not prefer first appeal within the
period of limitation. Further no decree in
respect of the counter claim filed by the
defendants-appellants was prepared. When
the appellant engaged other counsel in
Civil Appeal, he advised to file an appeal
against the dismissal of the counter claim.
The learned counsel also contended that the
court of Additional District Judge IV did
not take pain to deal with Section 5 of the
Limitation Act which gives discretion to
the court. The appellate court without
proper application of mind and adopting
very technical approach has rejected the
delay
condonation
application.
The
expression sufficient cause cannot be
strictly
interpreted.
Lenient
approach
should be adopted to do the substantial
justice. The learned counsel also contended
that first appeal against the dismissal of
original suit is still pending and hence no
prejudice will be caused to the respondents.
Learned counsel placed reliance on the
decision of this Court in Second Appeal
No.1169 of 2018 dated 07.09.2021 in
(Ishwar Saran vs. Vijay Kumar Kushwaha
and 3 ors) and another decision of division
bench this Court dated 09.06.2021 passed
in Special Appeal Defective No. 242 of
2021 (Mata Pher Mishra vs. State of U.P.
and two ors).

5.

Learned
counsel
for
the
respondents defended the impugned order
and contended that dismissal of counter
claim was in the knowledge of the
appellants since the beginning. They were
also participating in the appeal filed by the
respondents so they were aware of all the
proceedings but opted not to file any appeal
against the dismissal of the counter claim.
Later on with much delay, the appeal along
with delay condonation application was
filed. There is no sufficient ground to
condone the delay and the appellate court
has rightly rejected the delay condonation
application.

6. In this Second Appeal the appellant
has challenged the order dated 12.10.2018/
25.10.2018 by which the delay condonation
application has been rejected in misc. case
no.103 of 2018. The impugned order dated
12.10.2018 is not a decree, it is only a
formal order which is evident from the
perusal of the relevant papers. Although it
has been described in the memo of the
appeal as judgment and decree dated
12.10.2018/ 25.10.2018 but in true sense it
is not a decree, it is only a formal order.
The consequential order of dismissal of
first appeal will come in the purview of
decree but the said order is not under
challenge nor has been referred in the
memo of appeal. The provision of Section
100 of CPC which provides for Second
Appeal is as follows:

"Save as otherwise expressly
provided in the body of this Code or by any
other law for the time being in force, an
appeal shall lie to the High Court from
every decree passed in appeal by any Court
subordinate to the High Court, if the High
Court is satisfied that the case involves a
substantial question of law."

It is clear from the aforesaid
provision that Second Appeal before the
High Court shall lie from a decree passed
in appeal. As the impugned order does not
come under the purview of decree and it
2 All. Gas Authority of India Ltd. Vs. Ram Ashrey & Ors.
717
being only a formal order, no Second
Appeal will be maintainable against the
impugned order. This second appeal is
liable to be dismissed on this ground alone.

7. Accordingly the second appeal is
hereby dismissed.
----------
(2022)02ILR A717
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2015

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal No.908 of 2003

Gas Authority of India Ltd. ...Appellant
Versus
Ram Ashrey & Ors. ...Respondents

Counsel for the Appellant:
Sri A.K. Gaur, Sri Madhur Prakash, Sri V.K. Singh

Counsel for the Respondents:
Sri Dinesh Pathak, Sri Rakesh Pathak

A. Land Acquisition - Determination of
market value of the acquired land - The
market value of land under acquisition has to
be deduced by loading the price reflected in
the instances taken for plus factors and
unloading for minus factors. In other words,
a balance sheet of plus and minus factors
may be drawn and the relevant factors may
be valuated in terms of price variation. (Para
19)

First Appeal Rejected. (E-10)

List of Cases cited:

1. Jawajee Nagnatham Vs Revenue Divisional
Officer (1994) 4 SCC 595

2. Land Acquisition Officer Vs Jasti Rohini 1995
(1) SCC 717

3. U.P. Jal Nigam Vs M/s Kalra Properties (P)
Ltd. (1996) 3 SCC 124

4. Krishi Utpadan Mandi Samiti Vs Bipin kumar
(2004) 2 SCC 283

5. Lal Chand Vs U.O.I. & anr. (2009) 15 SCC 769

6. Ramesh Chand Bansal Vs District Magistrate/
Collector (1999) 5 SCC 62

7. R. Sai Ram Bharathi Vs J. Jayalalitha (2004) 2
SCC 9

8. Chimanlal Hargoviddas Vs Special Land
Acquisition Officer (1988) 3 SCC 751

9. V.M. Salgoacar & brother Ltd. Vs U.O.I.
(1995) 2 SCC 302

10. Shakuntalabai (Smt.) & ors. Vs St.of Mah.
1996 (2) SCC 152

11. State of U.P. Vs Major Jitendra kumar & ors.
AIR 1982 SC 876

12. Administrator General of West Bengal Vs
Collector, Varanasi AIR 1998 SC 943

13. Meerut Development Authority through its
Secretary
Vs
Basheshwar
Dayal
(since
deceased) through His L.Rs. & anr. First Appeal
No. 454 of 2003

14. Bhule Ram Vs UOI & anr. JT 2014 (5) SC
110

15. Bhupal Singh & ors. Vs St.of Har. (2015) 5
SCC 801

16. Chandrashekar Vs Land Acquisition Officer
(2012) 1 SCC 390

17. Subh Ram Vs State of Haryana (2010) 1 SCC
444

18. K. Devakimma & ors. Vs Tirumala Tirupati
Devasthanam & anr. 2015 (111) ALR 241
(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Rakesh Srivastava, J.)