Allahabad High Court
Shankar Lal vs State Of U.P. And 2 Others on 3 October, 2024
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:162652 Court No. - 49 Case :- WRIT - B No. - 695 of 2021 Petitioner :- Shankar Lal Respondent :- State Of U.P. And 2 Others Hon'ble Dinesh Pathak,J.
In Re : Civil Misc. Civil Misc. Delay Condonation Application No. 05/2022 and Recall/Restoration Application No. 06/2022
1. Instant recall application along with the delay condonation application has been filed at belated stage on 19.01.2022 to recall the order dated 27.07.2021 passed by this Court whereby writ petition has been decided finally on merits after hearing both the parties.
2. In paragraph nos. 5, 6 and 7 of the affidavit filed in support of the delay condonation application, applicants have tried to give a lame excuse for delay in filing the instant recall application. For ready reference, Paragraph Nos. 5, 6 and 7 of the affidavit are quoted herein below :-
"5. That the order dated 07.09.2021 was informed by h is counsel in the last week of October 2021, when the applicant inquired about the status of the case, thereafter, the applicant had found certain papers which were not available at the time of filing the impleadment application and certain facts which were not known at the time when the above-mentioned impleadment application was filed. The documents were made available tot he applicant in the second week of October, 2021 and thereafter the applicant fell ill and was diagnosed jaundice and was advised to complete bed rest, as such, he could not come to Allahabad. The applicant who was getting treatment through local ayurvedic doctor and he became well in the first week of January, 2022.
6. That the applicant came to Allahabad on the first week of January, 2022 along with relevant appears and met his counsel for filing of the recall application. The counsel for the applicant refused to file application, as such, he went back and contacted his local counsel about another counsel for High Court. The local counsel advised him to meet Shri Jitendra Prasad Mishra Advocate at Allahabad. Immediately thereafter, the applicant came to Allahabad to meet him. Shri Jitendra Prasad Mishra told him that he is practicing at the criminal side and advised him to meet the present counsel. The deponent came and met the present counsel and who after going through the entire record had told him that there are not fair chances but since the fraud has been played as such, he will file the recall application.
7. That deponent went back but present counsel fell ill and had fever and severe cough and cold. The present counsel became well in the third week of January, 2022 and thereafter the present recall application is being filed without any further delay. The slight delay in filing the recall application is on account of above-mentioned bona fide and compelling circumstances which may be condoned in the interest of justice."
3. Perusal of record reveals that order dated 27.07.2021 had been passed in presence of present recall applicants who had filed the impleadment application no. 03/2021. Said impleadment application was rejected after hearing the counsel for the applicants. However, at later stage, learned counsel for the present applicants has moved a review application against the order dated 27.07.2021. Said review application was dismissed as well on merits vide order dated 07.09.2021. Thus, orders dated 27.07.2021 and 07.09.2021 were well within the knowledge of the present applicants, however, despite the knowledge, they deliberately shown their reluctance in filing the recall application within the prescribed period of limitation. There is a gross negligence and deliberate inaction at the part of the present applicant in moving the instant recall application at a belated stage without showing sufficiency of cause for the delay. Perusal of orders dated 27.07.2021 and 07.09.2021 manifest that both the orders have been passed after hearing the counsel for the present applicants.
4. In my considered view, instant delay condonation application as well as recall application is nothing but an abuse of process of law, which is sham, illusory, collusive and inspired by nefarious & vexatious designs. Applicants have filed the instant recall application with mala fide intention despite the fact that order dated 27.07.2021 passed by this Court has already attained finality between the parties inasmuch as review application against the said order has been dismissed on 07.09.2021.
5. The Hon?ble Supreme Court has constrained itself in adopting liberal approach while dealing with the phrase ?sufficient cause?. Considering the several decisions, Hon'ble Supreme Court in the matter of Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors., AIR 2022 SC 332, has expounded that, in normal course, delay cannot be condoned unless sufficient reason is assigned. For ready reference, Paragraph Nos.7.1 to 7.5 are quoted herein below :-
"7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under:-
In construing s. 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. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood, the words "sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.
7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed 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 and the courts have no power to extend the period of limitation on equitable grounds. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under :-
"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty, some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights."
6. In recent judgement of Pathapati Subba Reddy v. Special Deputy Collector, SLP (Civil) No.31248 of 2018 decided on 08.04.2024, Hon'ble Supreme Court has held that in all cases, liberal approach should not be adopted and limitation law have to be construed differently. Relevant Paragraph Nos.18 to 26 are quoted herein below :-
"18. This Court as far back in 1962 in the case of Ramlal, Motilal And Chhotelal v. Rewa Coalfields Ltd A.I.R. 1962 SC 361 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the court. The court, despite establishment of a sufficient cause for various reasons, may refuse to condone the delay depending upon the bona fides of the party.
19. In Maqbul Ahmad and Ors. v. Onkar Pratap Narain Singh and Ors. A.I.R. 1935 PC 85, it had been held that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone.
20. In this connection, a reference may be made to Brijesh Kumar and Ors. v. State of Haryana and Ors. 2014 (4) SCALE 50 wherein while observing, as above, this Court further laid down that if some person has obtained a relief approaching the court just or immediately when the cause of action had arisen, other persons cannot take the benefit of the same by approaching the court at a belated stage simply on the ground of parity, equity, sympathy and compassion.
21. In Lanka Venkateswarlu v. State of Andhra Pradesh & Ors. (2011) 4 SCC 363, where the High Court, despite unsatisfactory explanation for the delay of 3703 days, had allowed the applications for condonation of delay, this Court held that the High Court failed to exercise its discretion in a reasonable and objective manner High Court should have exercised the discretion in a systematic and an informed manner. The liberal approach in considering sufficiency of cause for delay should not be allowed to override substantial law of limitation. The Court observed that the concepts such as liberal approach, 'justice-oriented' approach and 'substantial justice' cannot be employed to jettison the substantial law of limitation.
22. It has also been settled vide State of Jharkhand & Ors. v. Ashok Kumar Chokhani & Ors. AIR 2009 SC 1927, that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal.
23. In Basawaraj and Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81, this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression 'sufficient cause' as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds.
24. It would be beneficial to quote paragraph 12 of the aforesaid decision which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal approach and in implementing the statute as it stands. Paragraph 12 reads as under :
"12. It is a settled legal proposition that 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 equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." 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. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not a decisive factor to be considered while interpreting a statute."
25. This Court in the same breath in the same very decision vide paragraph 15 went on to observe as under :
"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified grond to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
(emphasis supplied)
26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(1) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."
7. Having considered the ratio decided by the Hon'ble Supreme Court, as discussed above, in given circumstances of the present case, I am of the considered view that deliberate inaction at the part of the present applicants and lack of bona fide do not create any justifiable ground to exercise the discretionary jurisdiction by this Court in favour of the present applicants to condone the delay in filing the restoration application. It is a matter of concern as well, as discussed in preceding paragraphs, that the order which has been sought to be recalled and subsequent order passed on the review application filed against the previous order were well within the knowledge of the present applicants inasmuch as same have been passed after affording them opportunity of hearing, therefore, instant delay condonation application as well as the restoration application is liable to be throttled at the threshold. In the matter of Maniben Devraj Shah v. Municipal Corporation and others, AIR 2012 Supreme Court 1629, the Hon'ble Apex Court has held that court cannot become oblivious of the fact that successful litigant has acquired certain right on the basis of the judgement under challenge and a lot of time is consumed at various stages of litigation apart from the cost. In the present case, delay is not properly, satisfactorily or convincingly explained, therefore, no case is made out to condone the delay on sympathetic ground.
8. In this conspectus, as above, I do not find any justifiable ground to entertain the instant recall/restoration application along with the delay condonation application and interfere in the order dated 27.07.2021 passed by this Court which has been sought to be recalled. Prima facie, it appears that present applicants have filed the instant recall application along with delay condonation application just to harass the opposite party who has acquired certain rights on the basis of the order passed by the Consolidation Courts as well as the order passed by this Court.
9. Resultantly, instant delay condonation application along with recall application, being misconceived and devoid of merits, is dismissed with no order as to costs.
Order Date :- 3.10.2024/ Rama Kant