Gujarat High Court
Govindbhai S/O Late Maganlal Prajapati ... vs Bharat Petroleum Corporation Ltd on 9 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/CRA/452/2021 ORDER DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 452 of 2021
==========================================================
GOVINDBHAI S/O LATE MAGANLAL PRAJAPATI AS LESSER AND ONE
OF LH OF LATE MAGANLAL PRAJAPATI
Versus
BHARAT PETROLEUM CORPORATION LTD
==========================================================
Appearance:
MR MEHUL SHARAD SHAH(773) for the Applicant(s) No. 1,2,3,4,5
MR UDAY M JOSHI(380) for the Opponent(s) No. 2
MS MINOO A SHAH(774) for the Opponent(s) No. 1
==========================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/06/2022
ORAL ORDER
1. Being aggrieved and dissatisfied with the order dated 29.09.2021 passed by the learned Small Causes Court, Ahmedabad in Civil Miscellaneous Application No.251 of 2018 (Delay Condonation Application) the plaintiffs, who are respondent nos. 1 to 5 in the Civil Miscellaneous Application have preferred this revision application.
2. The facts giving rise to the present revision application in nutshell are as under.
2.1.Mr.Govindbhai Prajapati and Mr.Maganlal Prajapati executed registered lease deed in favour of the respondent, where by the land situated at survey no. 153 of village Achher of Taluka and City of Page 1 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 Ahmedabad admeasuring 2,788 square yards, at monthly rate of Rs.351/- with effect from 01.08.1962. The lease deed expired due to efflux of time period on 31.07.1982. That respondent no. 1 did not vacated the premises and occupied the land for more than 40 years without paying any rent since 31.07.1997. the plaintiff therefore preferred the HRP Suit No.1790 of 1997, before the Small Causes Court at Ahmedabad for decree of possession and mense profit, which came to be allowed by the Trial Court.
2.2. Being aggrieved by the judgment and decree of eviction, the defendant preferred appeal before the Small Causes Court being Civil Appeal No. 79 of 2006, which came to be dismissed for default on 08.11.2017. Thereafter, when the bailiff went for execution of possession warrant, the defendant approached appellate court for restoring the appeal and as their was a delay of 263 days in preferring the Restoration Application, it had filed the Civil Miscellaneous Application No. 251 of 2018 which came to be allowed by the appellate court condoning the delay with the condition that the defendant- appellant therein shall deposit Rs.15,000/- as cost payable to the plaintiff- respondent. This order of the appellate court has been challenged by the plaintiff by preferring this revision application.
Page 2 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022C/CRA/452/2021 ORDER DATED: 09/06/2022
3. The main contention of the plaintiff is that there was no cause for condoning the delay as the conduct of the defendant in not prosecuting the appeal was believed by the Appellate Court in its order. It is also contended that the Appellate Court has failed to consider the facts that appeal was pending for 10 years and it was not prosecuted by the advocate for the defendant and it was ultimately dismissed for want of prosecution. According to the plaintiff, considering the gross misconduct on the part of the defendant no. 1, delay ought not to have been condoned by the Appellate Court. It is also contended that the defendant no.1 was negligent in conducting the matter and therefore, the Appellate Court could not have allowed the delay condone application especially when the defendant no. 1 is occupying the land without any legal title and without paying any money to the plaintiff and it has tried to handover the part of the possession to the third party.
4. Heard learned advocate Mr. Mehul Sharad Shah for the applicant-plaintiff and learned advocate Ms.Minoo Shah for Opponent No.1-defendant no. 1, none has appeared for respondent no. 2. Perused the material placed on record and the decisions cited at bar.
Page 3 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022C/CRA/452/2021 ORDER DATED: 09/06/2022
5. Learned advocate Mr.Shah for the plaintiff- applicant has vehemently submitted the facts that the defendant no. 1 is using the land in question unauthorisedly for more than 40 years and that to without paying any amount to the plaintiff, who are the owner of the land in question. He has also submitted that decree has came to be passed in favour of the plaintiff, against which appeal was preferred by the defendant no. 1 which came to be dismissed for want of prosecution as learned advocate for the appellant -defendant no. 1 did not remain present. He has submitted that the stand taken by the defendant no. 1 in delay condonation application is that as per legal advise, none of the officer of the defendant no. 1 was remaining present before the Appellate Court. According to Mr. Shah, this averment of the defendant no. 1 cannot be accepted as during the course of hearing of Appeal, there is no necessity of any presence of the parties to the litigation. He has submitted that the other point of defence put forward by the defendant in delay condonation application is that the matter was frequently adjourned and it was not coming on board frequently and due to that advocate for the defendant no. 1-appellant could not remain present before the court, is devoid of merits. He has submitted that while dismissing the appeal for want Page 4 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 of prosecution, the Appellate Court has clearly mentioned in its order that appellant was knowing the date of hearing.
5.1. Learned advocate Mr. Shah has also vehemently submitted that, since the dismissal of the appeal, the application for restoration ought to have been preferred within a stipulated period, however, in preferring such application defendant no. 1 has took 263 days and therefore such delay ought not to have been condoned by the First Appellate Court as the cause of delay as averred by the respondent- defendant no. 1 cannot be said to be satisfactory. He has submitted that First Appellate Court has committed serious error of law in condoning the delay and due to that the decree passed in favour of the plaintiff cannot be executed for long period of time and plaintiff is unable to get the fruits of decree of possession in their favour. He has prayed to allow the present application and to set aside the impugned order.
5.2. He has relied upon the following decisions in support of his arguments.
1. In case of Commissioner of Wealth Tax Vs Amateur Riders Club, Bombay reported in 1994 Supp (2) SCC 603, especially in para 3, which Page 5 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 reads as under:-
"3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support for this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red- tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."
2. In case of Pundlik Jalam Patil (Dead) By Lrs. Vs Executive Engineer, Jalgaon Medium Project And Another reported in (2008) 17 SCC 448, in para 31 wherein it has been observed as under:-
Page 6 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022C/CRA/452/2021 ORDER DATED: 09/06/2022 "31. It is true that when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of latitude but the law of limitation is same for citizen and for governmental authorities. The Limitation Act does not provide for a different period to the Government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings."
3. In case of Postmaster General And Others Vs Living Media India Limited And Another reported in 2012 (3) SCC 563. It has observed in para 28 and 29 as under:-
"28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal Page 7 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Govermment.
29. 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
4. In case of State of Uttar Pradesh through Executive Engineer And Another Vs Amar Nath Yadav reported in (2014) 2 SCC 422, wherein the Page 8 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 earlier decision of the Postmaster General And Others Supra has been referred to.
5. In case of Badri Bhagat Jhandewalan Temple Vs Delhi Development Authority reported in 2003 LawSuit (Del) 417, wherein it has observed in Para 20 as under:-
"20. Instant case is wholly on sticky wicket. Negligence of a lawyer in not appearing on one or two dates of hearing is understandable and aggrieved party can take advantage of such a negligence. But where the negligence and conduct of the party is of highest magnitude and is writ large, the party cannot take shelter behind its Advocate. If a party does not care to know about the status of its case or proceedings in the suit for years together when in the past hearings were fixed after a month, two month or so, such a party has to be shown the door and denied the discretion to set aside the ex parte proceedings or judgment passed against it. In this case the defendant did not try to know for five long years as to the status of the case. Defendant is having its office in the High Court Building itself. It has a staff and officers who maintain the record of each case and pursue on day to day basis. Senior Law Officers are there to monitor and regulate the status of cases. They maintain the record as to assignment of cases to their lawyers from time to time. Still there was non-participation in the Page 9 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 proceedings for more than five years and the defendant wants this court to set aside the judgment. It militates against the judicial conscience."
6. The decision of the Apex court dated 25.02. 2022 passed in Special Leave To Appeal (C) Nos.2054- 2055 of 2022, in case of Lingeswaran Vs Thirunagalingam, wherein in para 5 and 5.1 has been observed as under:-
"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of Popat Bahiru Goverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on Page 10 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
5.1 In the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157, in paragraph 14, it is observed and held as under:
"The law of limitation is founded on public policy. The limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.""
6. Per Contra learned advocate Ms. Shah for respondent no.1 one as vehemently supported the impugned order of the First Appellate Court and has submitted that the First Appellate Court has not committed any error of facts and law in allowing the delay condone application. She has submitted that as per the advice of the learned advocate, the officers of the defendant no.1 was not remaining Page 11 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 present during the course of appeal and therefore, no fault could be found on the officers of the defendant no.1. She has also submitted that the appeal was listed initially in the year 2014 and thereafter, it went into cut off and relisted in the year 2016 and once again it went into cut off and relisted in the year 2017. According to her submissions, as the learned advocate for the defendant no.1 was not in knowledge of the date fixed for hearing, he could not remain present before the Appellate Court and the appeal came to be dismissed for want of prosecution. She has submitted that on arrival of the bailiff for execution of the possession warrant, the officer of the defendant no.1 came to know regarding the dismissal of the appeal and thereafter, after getting certified copy of the order and after approval from the higher authorities, they have filed the delay condonation application for restoration of the appeal. She has submitted that even as per the averments of the plaintiff, the suit was filed after 15 years of expiry of the lease period. She has submitted that due to the default on the part of the advocate, the appeal came to be dismissed and for the default on the part of the advocate, the party- litigant may not be suffered. She has submitted that the impugned order of the condoning the delay is proper one and there is no need of interfering it. She Page 12 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 has submitted that the impugned order is sustainable in the eyes of law and as per the order of the Court, the defendant no.1 has deposited Rs.15,000/- as a cost before the First Appellate Court. She has prayed to dismiss this Revision Application. She has relied upon the following decisions.
(i) In case of Collector Land Acquisition, Anantnag & Anr. Vs. Katiji & Ors. Reported ijn 1987 AIR SC 1353, from the following observations:-
"3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice-- that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit Page 13 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 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 con- doned 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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for Page 14 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the in-herited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigantnongrata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on Page 15 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 merits after affording reasonable opportunity of hearing to both the sides. Appeal is allowed accordingly. No costs."
(ii) In case of State of Bihar Vs. Kameshwar Prasad Singh with State of Bihar V.s. Brij Bihari Prasad Singh with Indra Nand Mishra Vs. State of Bihar reported in (2000) 9 SCC 94, wherein it is observed in para 11, 13 and 14 as under:-
"11. Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag & Anr. vs. Mst.Katiji & Ors.[1987 (2) SCR 387] 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 a liberal approach is adopted on principle as it is realised that:
"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.Page 16 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022
C/CRA/452/2021 ORDER DATED: 09/06/2022
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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
13. In Nand Kishore v. State of Punjab [1995 (6) SCC 614] this Court under the peculiar circumstances of the case condoned the delay in approaching this Court of about 31 years. In N. Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123] this Court held that the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The primary function of a Court is to adjudicate disputes between the parties and to advance Page 17 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack malafides or is not shown to have been put forth as a part of dilatory strategy, the court must show utmost consideration to the suitor. In this context it was observed:
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."Page 18 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022
C/CRA/452/2021 ORDER DATED: 09/06/2022
14. Looking into the facts and circumstances of the case, as noticed earlier and with the object of doing substantial justice to all the parties concerned, we are of the opinion that sufficient cause has been made out by the petitioners which has persuaded us to condone the delay in filing the petitions. Dismissing the appeals on technical grounds of limitation would not, in any way, advance the interests of justice but admittedly, result in failure of justice as the impugned judgments are likely to affect not only the parties before us, but hundreds of other persons who are stated to be senior than the respondents. The technicalities of law cannot prevent us from doing substantial justice and undoing the illegalities perpetuated on the basis of the impugned judgments. However, while deciding the petitions, the reliefs in the case can appropriately be moulded which may not amount to unsettle the settled rights of the parties on the basis of judicial pronouncements made by the courts regarding which the State is shown to have been careless and negligent. It is paramount consideration of this Court to safeguard the interests of all the litigants and persons serving the Police Department of the State of Bihar by ensuring the security of the tenure and non disturbance of accrual of rights upon them under the prevalent law and the rules made in that behalf. Accordingly delay in filing the petitions is condoned."
(iii) The Apex Court in the judgment of N. Page 19 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 Balakrishnan Vs. M.Krishnamurthy reported in (1998) 7 SCC 123, wherein para 9, 10, 11, 12 and 13 has been observed as under:-
"9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of Page 20 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Page 21 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal Vs. The Administrator, Howrah Municipality, AIR 1972 SC 749.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
(iv) In the decision of the Apex Court in case of M.K.Prasad Vs. P. Arumugam reported in (2001) 6 SCC 176, wherein the judgment of N.Balakrishnan Supra has been referred to.
Page 22 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022C/CRA/452/2021 ORDER DATED: 09/06/2022
7. Having considered the submissions made on behalf of both the sides, coupled with the material placed on record as well as the decisions cited at bar, it emerges that there is no dispute that the suit land was leased out by the plaintiff to the defendant no.1 and the lease period has expired by efflux of time. It is also admitted facts that possession decree had been passed in favour of the plaintiff by the Trial Court and against which the defendant no.1 has preferred appeal before the Small Causes Court. It is admitted facts that the said appeal came to be dismissed for want of prosecution. It is also admitted facts that the defendant no.1 has preferred delay condone application for restoration of such appeal on the ground that due to legal advice nobody was appearing personally from the office of the defendant no.1, at the time of hearing of the appeal and that the appeal was not listed and frequently kept in cut off.
8. Now, so far as the question of delay condone is concerned, it is well settled that the rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to delatory tactics, but seek their remedy promptly. The object of providing legal remedy is to repair the damages caused by the reason of legal injury. Law of limitation fixes a time span for such Page 23 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 legal remedy for redressal of the legal injury so suffered. Time is precious and the wasted time would never reivisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts, so a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on Public Policy.
9. Further, it is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criteria. Sometimes, delay of the shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts that the explanation is sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in a revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse.
Page 24 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022C/CRA/452/2021 ORDER DATED: 09/06/2022
10. Thus, considering the well settled principles of law in respect of condonation of delay and the power of the revisional Court in interfering with the discretionary order passed by the Trial Court in condoning the delay, on perusal of the facts and circumstances of this case, it clearly appears that the reason put forward by the defendant no.1 regarding non-appearance of the officers of the defendant no.1 personally before the Appellate Court and non-appearance of the learned advocated for the defendant no.1 on a date fixed by the Appellant Court for the hearing of the appeal are plausible one. Of course, the possession decree passed in favour of the applicant-original plaintiff is of the year 2006, the plaintiff is unable to get the fruits of that decree. But the facts remains that being aggrieved by the said judgment of the Trial Court, appeal was preferred which came to be dismissed for default on the part of the learned advocate in not appearing before the appellate Court on a given date. Since there was a default on the part of the learned advocate for the defendant no.1, the right of the party concerned cannot be frustrated merely on a technical ground such as delay. Due to passing of order of condonation of delay, a matter would be heard by the appellate Court on merits by providing opportunity of being heard to both the sides. Thus, the plaintiff-appellate would get Page 25 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022 C/CRA/452/2021 ORDER DATED: 09/06/2022 appropriate opportunity in the course of hearing of the appeal. Whereas, if the delay is not condoned then the valuable right of appeal which is creature of the statute in favour of the defendant would be frustrated. On considering the facts and circumstances of the case and the impugned order of the Appellate Court condoning the delay, it appears that the view taken by the First Appellate Court in condoning the delay is plausible one. Hence, under the limited jurisdiction as a revisional Court, this Court does not find it proper to interfere with the impugned order of the First Appellate Court in condoning the delay. However, some sort of direction needs to be issued to the First Appellate Court to hear the appeal, if it is restored within a specified time period.
11. Hence, in view of the above, the present Civil Revision Application is hereby dismissed. The First Appellate Court, i.e. Small Causes Court, Ahmedabad is hereby directed to see to it that the appeal before it, if restored, be expedited and disposed of as early as possible, preferably on or before 31.07.2022 without fail. No order as to costs. Direct service is permitted.
(DR. A. P. THAKER, J) URIL RANA Page 26 of 26 Downloaded on : Fri Jun 10 21:01:56 IST 2022