Babu Kesavan vs Prakasan on 2 April, 2013

[Cites 20, Cited by 1]

Kerala High Court

Babu Kesavan vs Prakasan on 2 April, 2013

A rather ubiquitous application for condonation of delay in filing an appeal, the likes of which are virtually circadian in this Court now, has drawn certain important and climacteric issues for our consideration. What began as a usual hearing on an application seeking condonation of delay quickly transmuted itself, to a very large extent on account of the thorough submissions and sure assertions of the learned Senior Counsel Sri.R.D.Shenoy, ably assisted by Sri.Lakshmi Narayanan, appearing for the appellant and of Sri.Srinath Girish, learned counsel for the respondent, into one making deep inroads into the power and scope of considerations of this Court exercising discretion from the touchstone of equity, fairness and reasonableness.

RFA 311/17 2

2. The power of an appellate court to condone the delay in filing appeals is circumscribed only by the limitations contained in Order XLI Rule 3A of the Code of Civil Procedure ('the CPC' for short). The said provision is indubitable that the appellate court would be justified in condonation of delay only if the application shows sufficient cause for not preferring the appeal within the period of limitation.

3. The constitutive facts which led to this appeal at the hands of the defendants, in a suit for specific performance filed by the plaintiff, is that a decree was passed by the Sub Court, Kozhikode in O.S.No.279/2010 on 02.04.2013 ordering specific performance of an agreement for sale between them. The court below had passed the decree setting the appellants ex parte and had directed them to execute the sale deed in favour of the plaintiff within one month from the date of acceptance of the balance sale consideration. The appellants have filed this appeal after a fairly long period of time of nearly 1433 days and had sought to explain this delay primarily on the ground that they had invoked their 'alternative' remedies under Order IX Rule 13 of the CPC RFA 311/17 3 before the Sub Court to set aside the ex parte decree. According to the appellants, they had, on the decree being issued by the court below, filed I.A.No.4710/2013 to set aside the ex parte decree supported by I.A.No.4709/2013 to condone the delay of 122 days in filing the said application. The Sub Court, however, dismissed these applications finding that even though the appellants herein may have had a case for not appearing before the court below on the day when they were set ex parte, the delay of 122 days in filing the application to set aside the ex parte decree under Order IX Rule 13 of the CPC did not show sufficient cause for it. In effect, the court below rejected the application to condone the delay finding that the appellants have not shown enough reason for the same. The appellants thereafter filed F.A.O.No. 161/2015 before this Court but that was also presented with a delay of 108 days. To condone this delay, they filed C.M.Appl. No.424/2015. This Court made an elaborate consideration of the reasons shown in the said application but, unfortunately for the appellants, found that the reasons stated therein cannot be believed and was pleased to dismiss the same RFA 311/17 4 finding it to be without sufficient cause, with the axiomatic consequence of the appeal also being dismissed.

4. The appellants did not choose to rest there.

5. They filed SLP No.397/2016 before the Hon'ble Supreme Court of India and by order dated 20.01.2016, the Hon'ble Court ordered parties to maintain status quo with respect to the plaint schedule property. The SLP was, however, dismissed on 10.04.2017 by the Hon'ble Supreme Court without finding any reservation in favour of the appellants.

6. After thus exhausting all the possible avenues of redress under Order IX Rule 13 of the CPC, the appellants are now attempting a fresh attack on the decree by filing this appeal under Section 96 of the CPC along with an application to condone substantial delay in doing so. The appellants say here that this Court was closed for summer recess from 13.04.2017 to 21.05.2017 and that they have filed this appeal on 03.06.2017, thus with a delay of 1433 days (incorrectly shown as 1400 days in the application). The appellants pray that this delay be condoned because, per them, they were RFA 311/17 5 prosecuting a valid remedy for the entire period of this delay before a proper court under the provisions of the CPC.

7. We have heard Sri.R.D.Shenoy, learned Senior Counsel, ably assisted by Sri.R.Lakshmi Narayanan, appearing for the appellants and Sri.Srinath Girish for the respondent.

8. We started this judgment by saying that these kind of applications are fairly common placed in this Court and it is true that we consider such applications on a routine basis. However, what sets this aside from the normal applications we see daily is: (a) the delay involved is extremely large and (b) it is severely contested by the respondent on the ground that this Court and the court below had, on earlier occasions, found at least certain portions of the delay to be improperly explained and unbelievable and therefore, that it is now unjustified on the part of the appellants in approaching the court with an application in this appeal to condone the very same periods of delay.

9. We are consequently pressed to make a thorough evaluation whether the appellants have shown sufficient cause in explaining the delay of 1433 days in filing this appeal from RFA 311/17 6 the touchstone of the questions if the delay occasioned from their side in prosecuting an application under Order IX Rule 13 would be justified and whether the two spells of 122 days and 108 days, which had already been found affirmatively by the court below and by this Court respectively on earlier occasions to be not explained by the appellants sufficiently. We at this time notice that the orders of the court below while dealing with the delay of 122 days in filing the application under Order IX Rule 13 and that of this Court, while dealing with the delay 108 days in filing the F.A.O.No.161/2015, had concluded that the reasons stated by the appellants were not even believable. It is with this in mind and in the background of these facts that we will have to consider whether their application for condonation of delay of an unduly large period of 1433 days would obtain justification in law.

10. Sri.Srinath Girish, learned counsel for the respondent vehemently submits that the explanation offered by the appellants that they were prosecuting an application under Order IX Rule 13 would not be a sufficient reason or cause in condoning the delay in filing this appeal. According to RFA 311/17 7 him, when the ex parte decree was passed by the court below on 02.04.2013, the appellants immediately had two options available to them: the first to file an application under Order IX Rule 13 to set aside the ex parte decree on the ground that their non appearance on a particular day was justified; and second, to file an appeal under Section 96 of the CPC against the decree wherein they would obtain opportunity not merely to assail the order setting them ex parte but also to impugn the decree as such on its merits. According to the learned counsel for the respondent, this is an option that was available to the appellants and that they had opted for one without opting for the other, being fully aware of the consequences. He maintains that once the appellants had invoked their remedy under Order IX Rule 13 and had chosen not to file an appeal under Section 96, it should be deemed that he had elected for the former remedy and to have waived the latter one. These submissions, we are sure, have its underpinning on the doctrine of election with respect to two available remedies.

RFA 311/17 8

11. The doctrine of election begins life as a part of the general doctrine of homologation and refers to the implied assent of a particular course while rejecting an alternative. These principles in Scotish Law are referred to as the doctrine of approbate and reprobate, which is not exactly the same as the English doctrine of election. The term election has two distinct categories as described in Halsbury (Halsbury's Laws of England Vol. 16(2), 4th Edn., para 962), firstly, the common law principle which puts a person to election between alternative and inconsistent courses of conduct and secondly the equitable doctrine of election.

12. The power of a court under Order IX Rule 13 CPC is to set aside an ex parte decree against the defendant if he is able to show that he was prevented by sufficient cause from appearing when the suit was called for hearing. When such cause is shown by the defendant, the court below would be enjoined in law to consider the sufficiency of such cause and to pass appropriate orders. This provision is circumscribed by an Explanation which was introduced to the CPC by the CPC Amendment Act, 1976; with effect from 01.02.1977. As per RFA 311/17 9 this Explanation, where there has been an appeal against the decree passed ex parte under this Rule and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this Rule for setting aside the ex parte decree. The purpose for introducing this Explanation was considered by the Hon'ble Supreme Court of India in the judgment in P.Kiran Kumar v. A.S.Khadar and others (AIR 2002 SC 2286). Their Lordships, after an elaborate consideration of the purposes of the amendment, held that the legislative attempt in incorporating the Explanation under Order IX Rule 13 is to confine the defendant to either one of the remedies made available to him and not both. Their Lordships held that the dismissal of the appeal on any ground apart from its withdrawal constituted a bar on the jurisdiction of the trial court to set aside the ex parte decree and that with the introduction of the Explanation, no application to set aside the ex parte decree would be maintainable where the defendant had filed an appeal and the appeal was disposed of on any ground, other than the ground that the appeal has been withdrawn by the RFA 311/17 10 appellant. The scope of the Explanation was further elaborated by their Lordships in paragraphs 13 and 15 of the said judgment, which is extremely interesting and compelling and we, therefore, feel idoneous to extract it for a full reading:

"13. The scope of explanation to Order IX Rule 13 was considered by this Court in Rani Choudhury v. Lt.Col. Suraj Jit Choudury [1982 (2) SCC 596]. In the said case, the wife who had filed the appeal in this court had obtained an ex parte decree of divorce against her husband in the matrimonial court. Husband had preferred an appeal in the High Court along with an application under section 5 of the Limitation Act for condonation of delay in filing the appeal. The High court dismissed the appeal as time barred. Respondent then moved an application under order IX, Rule 13, CPC for setting aside the ex parte decree. The matrimonial court dismissed the application on the ground that sufficient cause was not shown for condoning the delay. In appeal, however, the High Court took the view that explanation to Order IX Rule 13, CPC did not create any bar to the maintainability of the application under that rule as the appeal against the ex parte decree had not been dismissed on merits, but on the ground of delay. By not accepting the application for condonation of delay meant as if no appeal had been preferred. This Court allowed the appeal and set aside the judgment and order of the High court. The main judgment was written by R.S Pathak, J. It was held:

"The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law. By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex-parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer or have the decree set aside by the trial court under Rule 13 of Order 9. The legislative attempt incorporated in the RFA 311/17 11 Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Rule 13 of Order 9. The disposal of the appeal on any ground, whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation."

15. In the present case, as well we find that respondent No.2, the father of respondent No.1 preferred an appeal which had been dismissed as barred by limitation. Reading of the explanation to Order IX Rule 13 clearly indicates that if any appeal against an ex-parte decree had been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aide the ex-parte decree under Order IX Rule 13, CPC would be entertained. The words of the explanation are clear and unambiguous. It clearly indicate and suggest that if an appeal has been preferred and the same had been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of the application under Order IX Rule 13, CPC for setting aside the ex parte decree. The position of law on this point is discussed in paragraph 15 of the judgment in Rani Choudhury's case (supra). It has been observed that on a proper interpretation of the explanation, if an appeal against an ex parte decree has been filed and the appeal has been dismissed on any ground other than the dismissed as withdrawn, then the application under Order IX Rule 13, CPC would not be maintainable and cannot be entertained. "

13. Viewed from the angle postulated in the paragraphs extracted above, we are now called upon to consider whether an application under Order IX Rule 13 would operate as an exclusion to the remedy of a defendant under Section 96 of the CPC. It is gratifying that we do not RFA 311/17 12 require to labour much to find these answers because this has been exhaustively considered by the Hon'ble Supreme Court in its judgment in Bhanu Kumar Jain v. Archana Kumar and another (AIR 2005 SC 626). Our path is illuminated by the observations of the Hon'ble Supreme Court in paragraphs 26, 30, 36, 37 and 38, which are extracted as under for easy reference:

26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to explanation appended to Order 9, Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.

30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. Estopper by Accord.

36. However, it appears that in none of the aforementioned cases, the question as regard the right of the defendant to assail the judgment and decree on merit RFA 311/17 13 of the suit did not fall for consideration. A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. [See Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. and Others v. C.K.Saji and Others (2004) 3 SCC 734].

37. We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz., to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal, as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the Trial Court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to content that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in a such an appeal. We, however, agree with Mr.Choudhari that the 'Explanation' appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P.Kiran Kumar (supra) and Shyam Sundar Sarma v. Pannalal Jaiswal and Others [2004 (9) SCALE 270]."

RFA 311/17 14

14. A reading of the above extracted portions of the judgment would make it perspicuous that when an application under Order IX Rule 13 is invoked, the defendant can also invoke the remedy under Section 96 of the CPC and that the invocation of one would not be, in any manner, contrary or exclusive to the other. When considered from that perspective, it becomes virtually inescapable that the doctrine of election perhaps would not apply to this case in the manner as is understood in the English Law.

15. It is now accepted, without requirement for further explication, that the doctrine of election applies when the elector has a choice of two rights, either of which he is at liberty to exercise but not both. The rights between which he has a choice must be mutually exclusive. Obviously, there cannot be an election to choose one course in exclusion to the other when, in fact, he has only one course to take and where the two courses are such that the adoption of one does not necessarily indicate a final intention to abandon the other. It is the essence of election that the party is confronted with two mutually exclusive courses of action between which he must RFA 311/17 15 make his choice. In that respect, election is clearly distinguishable from promissory estoppel in which a party makes a declaration of his intention, similar in many ways to election but in circumstances which do not call upon him to make any choice at all (see Chapter XIII of the Law Relating to estoppel by Representation by George Spencer Bower).

16. Similarly, election is also to be distinguished from the Scotish doctrine which is better referred to as 'approbate and reprobate'. Generally estoppel arising from election will not invariably comply with all the requirements of an ordinary estoppel but contrary to the concept of waiver, when a litigant is confronted with the necessity of making a definite choice between two possible courses of action, which is mutually exclusive, the general rule of estoppel by election comes into play; that is to say, by conduct or inaction if one represents to the other party his intention to adopt one of the two alternative and inconsistent proceedings or positions, with the result that the latter is thereby encouraged to adopt or persevere in a line of conduct which he otherwise would have abandoned or modified or to change tactics from which he RFA 311/17 16 otherwise would never have deviated.

17. The question here essentially is whether the invocation of the remedy under Order IX Rule 13 would operate as a mutually exclusive remedy to Section 96 of the CPC. The answer to this as we have already indicated above, is available in the judgment of the Hon'ble Supreme Court in Bhanu Kumar Jain (supra). Their Lordships have declared the law without any doubt that these are not mutually exclusive remedies but virtually concurrent in their operation. When Order IX Rule 13 provides that a decree can be set aside for the reason that the defendant was prevented by sufficient cause from appearing on the date when the case was called, under Section 96 of the CPC he would obtain the right to assail the decree itself on its merits apart from the contention that the order setting him ex parte was wrong. To that extent, these two remedies are virtually concurrent; though the remedy under Section 96 of the CPC travels on a larger scale, the remedy under Order IX Rule 13 is confined to the question as to whether the defendant has sufficiently explained his non- appearance on a particular day. Since the periods of limitation RFA 311/17 17 between these remedies are also different, it is possible that a litigant can first elect and choose Order IX Rule 13 to have the ex parte decree set aside on the ground that his absence was justified on the date when the case was called. However, when the 90th day approaches, namely the date on which the remedy under Section 96 would get time bared before this Court, he would be then enjoined to exercise an election as to whether he should file an appeal under Section 96 or choose not to do so holding on to his remedy under Order IX Rule 13 if it has not attained finality by then.

18. It would normally be in prudence or at least ex abundanti cautela that he also file an appeal within the period of limitation and then wait and watch as to what happens to his application under Order IX Rule 13. This is because if the application under Order IX Rule 13 had been dismissed before the 90th day, obviously, going by the dictum laid by the Hon'ble Supreme Court in Bhanu Kumar Jain (supra), the defendant would still have the right to file an appeal under Section 96 of the CPC before this Court within the period of limitation. However, when a litigant decides not to file an RFA 311/17 18 appeal even after the period of limitation before this Court but chooses to continue with his remedy under Order IX Rule 13, which he had invoked earlier, then the question would arise as to whether it would be justified on his part to have the delay subsequently condoned after the entire proceedings under Order IX Rule 13 has culminated against him. For illustration, take this case itself. This is a case where the defendants, who are the appellants herein, had unsuccessfully pursued their remedy under Order IX Rule 13 before the court below, before this Court and finally before the Hon'ble Supreme Court. It is after all these three courts found against them that they have now chosen to file this appeal with a petition to condone the delay of 1433 days. As we have shown above, their only explanation is that they were bonafide prosecuting an alternative remedy before another Court.

19. We do not say that the doctrine of election would stand against the appellants. In fact, we are of the view that there would be no election at all because the two remedies under Order IX Rule 13 and Section 96 of the CPC are not mutually exclusive. They are virtually concurrent in their field RFA 311/17 19 of operation, albeit to a limited extent as we have indicated above, but since the period of limitation for filing an appeal before this Court expires on the 90th day and the period of limitation for filing an application under Order IX Rule 13 is thirty days from the date of decree the question is whether the appellants should be given the luxury of being able to prosecute their remedy under Order IX Rule 13 all the way to the Hon'ble Supreme Court and then come back to this Court under 96 of the CPC with a petition to condone the whole intervening delay. These considerations would be more vexing in a case where the regular appeal is to be filed before the District Court in a subject matter of lower pecuniary value. There, the period of limitation is only thirty days and therefore, if a party chooses to file an application under Order IX Rule 13 before the Sub Court to set aside the decree, he would also be required to consider if to file an appeal simultaneously to avoid the delay in filing the appeal before the District Court. The auxiliary question before us is whether there would be any impediment for an appeal to be filed thus when the application under Order IX Rule 13 is pending. We RFA 311/17 20 are emphatic in our opinion that not only there is no such impediment but it would only be justified on the part of the appellant to ensure that all his remedies are protected and preserved in doing so. Of course, we are not saying that he should do so because, as we have already seen above, in Bhanu Kumar Jain (supra) the Honble Supreme Court has said that these two remedies are not mutually exclusive. But, that being said, if the appellants choose not to invoke the remedy under Section 96 of the CPC within the period of limitation available to them, they run the risk of their application for condonation of delay being concluded and found against them. They are certainly aware of this risk and if they choose that risk, being fully conscious of the fact that by not filing an appeal within the period of time granted statutorily, they would be subject to the discretion of the appellate court in condoning such delay, thus being obligated to show cause for it. In other words, by making an election of not filing an appeal within the time granted, the appellants should be deemed to be aware that they are at the mercy of the Laws of Limitation and that the discretion of this Court in RFA 311/17 21 admitting an appeal with delay would not be a matter of right as it would have been had they filed the appeal within the period of limitation. It would certainly only be within the discretion of this Court, on a consideration of all the factors, to decide whether the delay ought to be condoned or rejected thereby throwing out the appeal itself at the threshold. This risk can be fully avoided if the defendant chooses to file the statutory appeal within the period of limitation without waiting endlessly for the Order IX Rule 13 application to finally conclude. We command this as a matter of prudence for litigants and leave it there.

20. Moving on to the specific facts of this case, the considerations we are called upon to enter into is whether the explanation shown by the appellants in seeking the delay of 1433 days condoned is justified or otherwise. As we have said above, the appellants always had an option of filing an appeal within the period of limitation. They do not say that they did not do so because they were not aware of such a remedy. On the contrary, they say that they consciously did not file the appeal because they thought it fit to pursue their remedy RFA 311/17 22 under Order IX Rule 13 to its fullest extent. This was a conscious election that they exercised. The question, therefore, is whether, after exercising such an election, they would be justified in turning around and saying that their application to condone the delay in filing an appeal under Section 96 should be allowed because they were prosecuting an alternative remedy under Order IX Rule 13. To exacerbate the issue in this particular case, there are at least two periods of time, namely 122 and 108 days, which the court below and this Court have respectively found, in their orders, to be insufficiently explained holding that condonation of those periods of delay cannot be ordered because they are not believable. Obviously, since the period of 1433 days involved in this appeal includes those periods also, we will have to tread continuously in considering if these two spells should now be condoned. Of course, the appellants cannot explain the two spells of delay in a different manner; that being impermissible and impossible. They can only have the same explanation for the delay of 122 and 108 days respectively, as was offered by them earlier, which the court below and this RFA 311/17 23 Court had found against them concurrently. The consideration, therefore, as to whether these periods can be now condoned is, in our view, beyond us.

21. In matters relating to condonation of delay in filing appeals against judgments and decrees of the courts below the Hon'ble Supreme Court has in several judgments, been advising strict circumspection by the High Courts and other Appellate Courts. The statutory mandate in such exercise, as the Hon'ble Supreme Court has been consistently reminding, is that an appellant is under a strict obligation to offer sufficient cause which is reasonable in its comprehension and further that the condonation of delay is only an exception to the Rules of Limitation, which is to be used sparingly for good and equitable reasons and only when the delay is properly explained. The binding precedents in this area are several and we will only enumerate a few of them, which we think are the most opportune and appropriate in this situation.

22. In Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (AIR 2012 SC 1506), the Hon'ble Supreme Court was considering the question of RFA 311/17 24 condoning the delay of 427 days caused by the Government in filing an appeal. Their Lordships in paragraph 13 of the said judgment indited their opinion as under:

"In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

Similarly in P.K.Ramachandran v. State of kerala and Another ((1997) 7 SCC 556) the principles relating to condonation of delay were again clearly explained in paragraph 6, which reads as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper not judicious. The order condoning the delay cannot be RFA 311/17 25 sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs."

In Union of India and Others v. Nripen Sarma ((2013) 4 SCC 57) the above principles were reinstated in paragraph 5 and their Lordships, in fact, dismissed an appeal which was filed with a delay of a comparatively short period of 114 days holding that there is no satisfactory explanation for condonation of delay even before the Hon'ble Supreme Court.

23. We are also certainly cognizant that the Hon'ble Supreme Court has also declared that the power to condone delay has been conferred upon the courts to enable them to do substantial justice by disposing of matters on merits. In fact, this is the focal point of the submissions of the learned Senior Counsel Sri.R.D.Shenoy. The learned Senior Counsel referred to the judgment of the Hon'ble Supreme Court in State of Bihar and Others v. Kameshwar Prasad Singh and Another ((2000) 9 SCC 94) and brought our notice to paragraph 11 of the said judgment, which reads as under:

"Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do RFA 311/17 26 substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition v. Katiji held that the expression "sufficient cause" employed by the legislature in the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts. It was further observed that liberal approach is adopted on principle as it is realised that: (SCC p.108, para 3) "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

24. We are conscious that the purpose of limitation is founded on a public policy to fix a life span for the legal RFA 311/17 27 remedy for general welfare. Of course, the primary function of a court is to adjudicate disputes, but time limits are fixed not because at the expiry of such time, a good cause would transform into a bad cause but to ensure that the life span of every litigation is determined in a particular manner. The object of providing a legal remedy by making an application for condonation of delay is of course to repair the damage caused by reason of legal injury but if the explanation offered for it is not justified or sufficient, it would not be within the province of this Court, or of any other court for that matter, to accept such explanation or to condone the delay.

25. The learned Senior Counsel continued vehemently and persistently in making an attempt to persuade us to condone the long delay in this case by submitting that the scope of enquiry in proceedings under Section 96 of the CPC is different from the scope of enquiry in proceedings under Order IX Rule 13. According to the learned Senior Counsel, even assuming that the appellants were not earlier able to justify the delay before this Court or before the court below in the Order IX Rule 13 proceedings, it should not be treated as RFA 311/17 28 an impediment against them when they make an attempt to justify the longer delay in approaching this Court under Section 96 of the CPC. In support of his submissions the learned Senior Counsel referred to the judgment of the Hon'ble Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others ((2013) 12 SCC 649) and read to us paragraphs 21 and 22 therefrom, which we extract for the purpose of quick reference:

"21. From the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

RFA 311/17 29

(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

RFA 311/17 30

(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:-

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non-

serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed of course, within legal parameters."

26. The learned Senior Counsel referring exhaustively to the various principles, broadly culled out by the Hon'ble Supreme Court in the aforementioned paragraphs, passionately contended that the applications for condonation of delay cannot be considered in a technical and strict manner and that it should be considered with more empathy and RFA 311/17 31 sympathy to the larger cause. He was, of course, consistently drawing our attention to the merits of this appeal in making his submissions that the appellants, if this appeal is not allowed, would be left without their valuable and sole residential property, since the decree directs them to execute a sale deed with respect to it in favour of the respondent.

27. We are afraid that even on a strict application of the principles that have been stated and re-stated by the Hon'ble Supreme Court as above, we do not see sufficient reason to condone this long delay of 1433 days in filing this appeal. This is because the appellants had not chosen to file an appeal until such time as they had prosecuted and completed their remedy under Order IX Rule 13 knowing fully well that the period of limitation for filing an appeal under Section 96 would expire on the 91st day of the decree. They had at that point of time not even applied for a certified copy of the judgment and decree and they had approached the Hon'ble Supreme Court by filing an SLP with the copy of the judgment that was in their possession, clearly indicating their intention not to file an appeal within the period prescribed in RFA 311/17 32 law but to prosecute the concurrent remedy under Order IX Rule 13 up to the Hon'ble Supreme Court and then being faced with the detriment of dismissal of their application by the Hon'ble Supreme Court, to apply for condonation before this Court so as to get the doors open for an appeal under Section 96 of the CPC. We do not think that this attitude is justified and we do not think that a litigant can be proffered the luxury of being able to dictate the manner of proceedings and the exclusive method of his choice.

28. As we have already indicated our mind in the paragraphs above, the appellants had the election of filing an Order IX Rule 13 application at the first instance and then in filing an appeal before this Court under Section 96 of the CPC, within the period of limitation, ex abundanti cautela. They chose not to do so. They elected to prosecute and proceed only with the Order IX Rule 13 application but not with a remedy of appeal before this Court.

29. That being said, even while doing so, they were not vigilant and circumspect because, even in the proceedings under Order IX Rule 13 large periods of delay were left RFA 311/17 33 unexplained which this Court and the court below had already found to be unbelievable. These overlapping periods of 122 and 108 days respectively, before the court below and this Court, are still not explained and unless they are explained cogently, which we are aware they cannot, in view of the binding views of this Court earlier, be allowed to file this appeal by condonation of the huge delay merely because they say that the ex parte decree causes grave injustice. The principles of equity, fairness and fair play cannot be extended to such levels nor are they to be used in the aid of litigants who have consciously decided not to invoke a particular remedy but to selectively invoke it later, with a large amount of delay, on being confronted with the situation that the remedy they had invoked has ended up against them. This, in our view, is not the manner in which the laws of limitation or principles of condonation should be applied.

30. The learned Senior Counsel at this point of time also referred to Section 14 of the Limitation Act and asserted that this entire period can be condoned within the confines of that provision. We are afraid that this submission does not RFA 311/17 34 appeal to us because Section 14 of the Limitation Act applies to delay that is caused when a litigant is prosecuting a wrong remedy. This is a case where the appellants were prosecuting a correct remedy; they were prosecuting a remedy that was available to them. When we made our mind clear on this as above, the learned Senior Counsel said that he was not canvassing the proposition that Section 14 would apply per se but that the principles under Sections 13, 14 and 15 of the Limitation Act should and would guide the consideration of this Court under Section 5 of the said Act. We, however, think that this is not an issue that we are required to consider in this proceedings because we notice that the appellants have not omitted to elect a remedy which was available to them but they have consciously chosen not to use it at the relevant time but to wait until the remedy that they chose culminated against them.

31. When all the submissions on the merits of the appeal as well as on the petition to condone the delay had virtually been exhausted, the learned Senior Counsel Sri.Shenoy invoked Section 21 of the Specific Relief Act with RFA 311/17 35 the submission that even if the delay is condoned, as applied for by the appellants, it would cause no prejudice to the respondent because this Court has the power to award compensation in certain cases under the said Section. According to him, this Court can impose stringent conditions, including compensation, for the delay that has been caused in filing this appeal and he says that such would be sufficient reparation and succor to the respondent, even if this Court is to condone the delay. We have given even this contention a great amount of consideration, but we are of the emphatic view that the power under Section 21 of the Specific Relief Act, 1963 is not intended for such circumstances. It is intended to ensure that a litigant is adequately compensated where a decree for specific performance is declined and compensation is granted in addition to or substitution of such performance. Au contraire, this is a case where the appellants brought it upon themselves by not filing an appeal at the right time before this Court and chose to wait under the choice of election that they enjoyed until the proceedings under Order IX Rule 13 have culminated against them.

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We, therefore, see no reason to interfere with any of the findings of the court below in the order impugned and we are compelled, without being with any other option, to dismiss the application filed for condonation of delay and consequently the appeal itself.

P.N.Ravindran, Judge Devan Ramachandran, Judge tkv

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