CIVIL APPEAL 94 of 2010 on 3 April 1991

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

C.R. No.: 94 of 2010.

Decided on: 15.11.2010._____________________________________________________

Chanderkant. … Petitioner/Plaintiff. Versus Vivek Kaushal. … Respondent/Defendant.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, J.

Whether approved for reporting?[1]Yes. For the Petitioner : Mr. Ashish Verma, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate.

Rajiv Sharma, J. (oral):

This petition is directed against the order passed by learned Additional District Judge (1), Kangra at Dharamshala in CMA No.157-D of 2005 on 31.5.2010. 2. Material facts necessary for adjudication of this petition are that the petitioner/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) instituted civil suit No.49/91/99/93 PBT on 3.4.1991 in the Court of Sub Judge 1[st] Class (I), Dharamshala for possession. The suit was dismissed by the 1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

learned Sub Judge on 27.4.1995. Thereafter the plaintiff preferred an appeal against the same on 14.7.2005 alongwith an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. The application was registered as CMA No.157-D/2005. The application was contested by the respondent/ defendant (hereinafter referred to as “the defendant” for convenience sake). Issues were framed on 8.5.2006. The learned Additional District Judge (I), Kangra at Dharamshala dismissed the application on 31.5.2010 and resultantly the appeal filed by the plaintiff was also dismissed being not maintainable. This revision petition is directed against the order dated 31.5.2010.

3. Mr. Ashish Verma, learned counsel for the plaintiff has strenuously argued that the learned Additional District Judge (I), Kangra at Dharamshala has ignored the well settled principle of law on the subject of condonation of delay. Mr. Ajay Kumar has supported the order dated 31.5.2010.

4. I have heard the learned counsel for the parties and gone through the judgment/order passed by the learned Additional District Judge (1), Kangra at Dharamshala.

5. What emerges from the pleadings of the parties is that the plaintiff had instituted a civil suit which was dismissed by the learned Sub Judge on 27.4.1995. Plaintiff filed an appeal only on 14.7.2005. Since the same was barred by limitation, he preferred an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. Primarily, the contention of the plaintiff was that since he was transferred on 20[th] June, 1997 from Dharamshala to Pangi Division of H.P. PWD and came back in December, 2004, he could not file the appeal. According to him, the learned Advocate who had represented him in civil suit No.49 of 1991 used to inform him that the copy was not ready. The certified copy of the judgment dated 27.4.1995 was applied for on 25.5.2005 and the same was received on 8.6.2005. Thereafter appeal was filed on 14.7.2005.

6. Plaintiff has appeared as AW-1. According to him, he went to his Advocate, who told him that he will write the letter to him as and when the copy of judgment and decree was ready. In the meantime he was transferred from Dharamshala to Pangi and he came back to Dharamshala in December, 2004. He again visited the office of his Advocate and enquired about the copy of the judgment. Ultimately, the case file was returned by his Advocate to him. Thereafter he engaged another Advocate. AW-2 has deposed that he went with AW-1 to meet his Advocate. He met him when he was coming back from hospital in the month of February, 1996. According to him he accompanied him to the office of Advocate. The version of plaintiff cannot be believed. The judgment and decree is dated 27.4.1995. He was transferred from Dharamshala to Pangi only on 20.6.1997. He had sufficient time being literate person to get the certified copy of the judgment and decree to enable him to file an appeal. He came back to Dharamshala in the month of December, 2004. However, the certified copy of the judgment and decree dated 27.4.1995 was applied for on 25.5.2005 and the same was received on 8.6.2005. Thereafter he waited for one month and the appeal was filed only on 14.7.2005. He was a resident of Dharamshala, therefore, it cannot be believed that he has not visited Dharamshala from June, 1997 till December, 2004. It is true that the Court has to construe liberally the provisions of Section 5 of the Limitation Act. It is also well settled that while dealing with the application under Section 5 of the Limitation Act, injustice should not be done to other party. The defendant has acquired a valuable right. The reasons assigned by the plaintiff are neither cogent nor convincing.

7. Their Lordships of the Hon’ble Supreme Court in Balwant Singh (dead) versus Jagdish Singh and others, AIR 2010 SC 3043 have culled out the following principles while dealing with section 5 of the Limitation Act, 1963:

“13. As held by this Court in the case of Mithailal Dalsangar Singh (supra), the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally. We may state that even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a

party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR 1962 SC 361] this Court took the view:

"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269. It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..."

16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.”

8. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs.

November 15, 2010. (sck).

(Rajiv Sharma), Judge.