Himachal Pradesh High Court
Subhash Chand vs Kusam Lata And Others on 20 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CR No. 77/2011 Decided on 20.6.2015
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Subhash Chand .....Petitioner
Versus
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Kusam Lata and others .....Respondents
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Hon'ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting?1
-------------------------------------------------------------------------------------- For the petitioner: Mr. Rajnish K. Lall, Advocate vice Mr. Sanjeev Sood, Advocate, for the petitioner. .
For the respondents: Mr. Neeraj Gupta, Advocate.
------------------------------------------------------------------------------------- Rajiv Sharma, Judge This petition is instituted against Order dated 25.5.2011 passed by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in CMA No. 137/2010.
2. "Key facts" necessary for the adjudication of the present petition are that Civil Suit titled Kusum Lata versus Ashok Kumar and others bearing No. 38/2005 was decided by the learned Civil Judge (Senior Division), Dehra, District Kangra, on 25.9.2008. Suit was decreed and a preliminary decree for possession was ordered to be passed in favour of the plaintiff. Petitioner alongwith Subhash Chand and Ram Piari filed an appeal against the judgment and decree dated 25.9.2008 before the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, which was barred by limitation.
Application was filed for condonation of delay. According to the averments made in the application, though suit was contested by defendants but there remained communication gap between them and 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:25:13 :::HCHPtheir counsel. Defendants were laymen. They came to know about the judgment and decree dated 25.9.2008 only when execution was filed by the plaintiff before the trial Court. There is delay of one year and four months. According to the reply filed by the plaintiff delay in filing .
appeal is deliberate and intentional. Shri Subhash Chand was present at the time of arguments and when judgment was announced.
2. Judgment and decree are dated 25.9.2008. Certified copy was applied on 18.1.2009. It was supplied to the defendants on 25.11.2009. Appeal was filed only on 15.2.2010. Defendants have miserably failed to make out a case for condonation of delay. Appeal has not been filed even after obtaining copy on 25.11.2009 and the same was filed on 15.2.2010. Defendants were not vigilant about their right. It is settled law that liberal approach should be adopted in condoning delay if the delay is shorter and stricter approach is to be adopted in case of inordinate delay. Court can not be oblivious of the rights accrued in favour of the plaintiffs, after preliminary decree was passed on 25.9.2008.
3. Their Lordships of the Hon'ble Supreme Court in Oriental Aroma Chemical Industries Ltd. V. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 have held that the liberal approach should be adopted in condoning the delay of short duration and stricter approach in cases of inordinate delay.
Their Lordships have held as under:
"14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every ::: Downloaded on - 15/04/2017 18:25:13 :::HCHP legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is .
shown for not availing the remedy within the stipulated time.
29. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land r Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC
106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142, State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P. v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582. ::: Downloaded on - 15/04/2017 18:25:13 :::HCHP
4. Their Lordships of the Hon'ble Supreme Court in Lanka Venkateshwarlu Vs. State of Andhra Pradesh and others (2011) 4 SCC 363 have held that liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, .
especially when court finds no justification for delay. Their Lordships have held as under:
"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors.
((1987) 2 SCC 107).
29. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:-
"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default ::: Downloaded on - 15/04/2017 18:25:13 :::HCHP or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that .
has accrued to it in law as a result of his acting vigilantly."
26. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay.
27. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the government pleaders.
28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.
29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can ::: Downloaded on - 15/04/2017 18:25:13 :::HCHP not and should not form the basis of exercising discretionary powers."
5. Accordingly, there is no merit in the present petition and the same is dismissed. Interim order dated 18.6.2011, is vacated.
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(Rajiv Sharma)
Judge
June 20, 2015
(vikrant)
r to
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