Gujarat High Court
Rasikbhai Chhaganlal Shah vs L/H Of Deceased Mahendrabhai Ramanbhai ... on 13 June, 2024
NEUTRAL CITATION
C/CA/137/2019 JUDGMENT DATED: 13/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 137 of
2019
In F/SECOND APPEAL NO. 39321 of 2018
With
F/SECOND APPEAL NO. 39321 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RASIKBHAI CHHAGANLAL SHAH
Versus
L/H OF DECEASED MAHENDRABHAI RAMANBHAI PATEL & ORS.
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Appearance:
ANSHUL N SHAH(8540) for the Applicant(s) No. 1
MR JAMSEHD KAVINA FOR MR SP MAJMUDAR(3456) for the Applicant(s)
No. 1
for the Respondent(s) No. 1
DELETED for the Respondent(s) No. 5,6
MR CHIRAG B PATEL(3679) for the Respondent(s) No. 1.2,2,3,4
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 1.1,1.3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/06/2024
ORAL JUDGMENT
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1. By way of this petition under section 5 of the Limitation Act, 1964 ('the Act' for short), the petitioner seeks condonation of delay of 1738 days in preferring Second Appeal against judgment and decree delivered in Regular Civil Suit No.1567 of 1996 dated 07.05.2013 delivered by learned Additional Senior Civil Judge, Vadodara dismissing the suit and confirmed by the learned Appellate Court, Vadodara in Regular Civil Appeal No.70 of 2013.
2. Brief facts of the case are as under :-
2.1. The appellants herein filed Regular Civil Suit No.1567 of 1996 against the respondents for declaration of validity and being in force of registered agreement for sale no.3034 dated 07.05.1982 executed by ancestor of respondents late Dahiben, widow of late Motibhai Shankarbahi. for the suit property.
Learned Trial Court after hearing the parties and considering evidence on record dismissed the suit vide order dated 07.05.2013. The appellants preferred Regular Civil Appeal No.70 of 2013 before the learned District Court, Vadodara. Learned Additional District Judge, Vadodara vide order dated 26.12.2013 dismissed the appeal. Thereafter, the appellants preferred Review Application No.1 of 2015 and said Review Application also came to be rejected on 27.08.2018. Thereafter, the appellant have preferred Second Appeal, however, there is delay of 1738 days in filing Second Appeal. Hence, present application for condonation of delay of 1738 days.
3. Heard learned advocate Mr.Jamshed Kavina for learned Page 2 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined advocate Mr.S.P.Majmudar for the appellants and learned advocate Mr.C.B.Patel for respondent nos.1.2, 2 and 3.4.
4. Main submission of learned advocate Mr.Kavina seeking condonation of delay was that the petitioner under legal advise of learned advocate had filed review petition before the learned District Court, which in inappropriate forum and even inappropriate remedy to challenge judgment and decree delivered in First Appeal confirming judgment and decree passed by learned Trial Court. He would submit that review petition was filed within stipulated time period before the learned District Court, Vadodara. It is submitted that review petition was decided after 3 years, 7 months and 20 days by the learned District Court, Vadodara. Since the petitioner was perusing his remedy before the inappropriate forum under inappropriate provision, benefit of section 14 of the Limitation Act could be given to the petitioner for extending time period for filing Second Appeal. It is submitted that looking to time taken to decide Review petition practically there is no inordinate delay in preferring Second Appeal, if that time period is excluded. He would submit that the petitioners were prosecuting remedy of review in good faith and bona-findly on legal advise of the advocate and therefore, section 14 of the Limitation Act qualifies extension of time period in filing Second Appeal and it could be said that by sufficient cause, the petitioner was prevented from filing Second Appeal. He would submit that the word "defect of jurisdiction" can be read as pursuing remedy in inappropriate forum as legislature has also used the word "other cause of a like nature" to cover other cause alike cause of prosecuting lis in forum having no jurisdiction. In view of that since there is Page 3 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined sufficient cause for the petitioner which prevented him from filing Second Appeal and as it is well explained, taking aid of section 14 of the Limitation Act, the petition should be allowed.
4.1. Learned advocate Mr.Kavina would further submit that though delay is of 1738 days, at first instance appears to be inordinate delay but in view of the aspect that the petitioner was perusing remedy before inappropriate forum as well as the petitioner is octogenarian; living in Mumbai, considering all these aspects, it is submitted to allow the petition and condone delay.
4.2. It is also submitted that second appeal is legitimate right of the petitioner; thus he should not be thrown-out on technical ground. Second Appeal should be allowed to see light of the day by imposing appropriate conditions while condoning delay. It is submitted that looking to the facts of the case, the petitioner may also be saddled with condition of costs while condoning delay. He would submit that wrong advise of the counsel which caused inordinate delay of 1738 days in filing Second Appeal could be condoned. It is submitted that wrong advise of the counsel can be considered as sufficient reasons for delay while reading section 5 and section 14 of the Limitation Act conjointly. Learned advocate referred to judgment of Bombay High Court in the case of Pattheroa Narsu Patil @ Rajaram Dnyanu Patil v/s. Gangubhai A. Lad [2018 SCC Online Bom 2892] as well as Judgment of this Court in the case of Anupam Port Cranes Corporation Ltd. v/s. Scan Shipping Pte. Ltd. [ 2023-GLR-1-384] to submit that if a party was prosecuting a lis before wrong forum, without any mala fide intention, time consumed in such Page 4 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined lis can be considered at the time of condonation of delay. Judgment of this Court in the case of Sapankumar Maniyar v/s. Kesar Motels Pvt. Ltd. [2022 Lawsuit (Guj.) 48] is also pressed into service to argue that if petitioner is prosecuting his lis in inappropriate forum, time consumed therein is to be condoned.
4.3. Upon above submissions, learned advocate Mr.Kavina submitted to allow the petition.
5. Learned advocate Chirag Patel for the respondents while objecting to the relief claimed by the petitioner to condone delay would submit that that it was petitioners conscious decision to file Review petition challenging judgment and decree before First Appellant Court. It is submitted that in view of section 114 read with Order 47 Rule 1 of CPC, review petition to review judgment and decree passed by learned first appellate court is legally maintainable. Producing copy of the judgment passed in Review Application No.1 of 2015 on record, learned advocate would submit that learned Additional District Judge did not dismiss the review petition on ground and reason of 'defect of jurisdiction' but found that there is no reasons in favour of the petitioner, which could permit the Court to review its own decision. He would submit that with due diligence and conscious at his hand, petitioner has prosecuted remedy of review and also obtained order in review petition, however, once the petitioner did not succeed in getting favourable order in review petition, he chose to prefer Second Appeal challenging judgment and decree delivered by First Appeal confirming judgment and decree passed by learned Trial Court. Thus, it is submitted that petitioner was not prosecuting his cause or lis before in inappropriate forum or Page 5 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined wrong forum but the forum which the petitioner had chosen was holding jurisdiction. Learned advocate Mr.Patel submits that no whisper of facts appears, which proves that the petitioner was prosecuting his review petition on wrong advise of advocate. It is also submitted that the petitioner has deliberately caused delay. Section 14 of the Limitation Act is not applicable in the present case. There is no bona-fide which could be attributed to the petitioner. He on his own chose remedy to file review petition which has consumed 3 years 7 months and 20 days and once he remained unsuccessful, he filed Second Appeal. So reasons for pressing section 14 of the Limitation Act to condone delay does not appear. It is submitted that besides claiming benefit of section 14 of the Limitation Act, no other grounds are pleaded by the petitioner to explain delay or sufficient cuase. Therefore, it is submitted to dismiss the petition.
5.1. In support of his submission, learned advocate Mr.Patel for the respondents has relied on judgment of Hon'ble Apex Court in the case of Majji Sannemma @ Sanyasirao v/s. Reddy Sridevi [JT 2021(12) SC 218], more particularly, para 7.3 and 7.4, which reads as under :-
"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 Page 6 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing timelimit 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."
5.2. Learned advocate for the respondent has also relied on judgment of Hon'ble Apex Court in the case of Pathapati Subba Reddy (Died) v/s. Special Deputy Collector [2024 SCC OnLine 513].
6. Having heard learned advocates for the parties, I may refer grounds averred in the petition by the petitioner to condone delay, which reads as under :-
Page 7 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined "(3) It is further submitted that a review application was challenging the filed order dated 26.12.2013 on the ground of an error apparent on the face of the record. It is further that the review submitted application came to be dismissed as not-maintainable vide order dated 27.08.2018, certified copy of which received by the was applicants on 17.09.2018.
(4) It is further submitted that the applicant was before an inappropriate forum and even as per section 14 of the limitation act, the delay is required to be condoned.
(5) It is submitted applicant is a that the senior citizen aged over 80 years and resides at Mumbai. It is further submitted that the applicant was to not able to travel to Vadodara collect the documents and then to travel to Ahmedabad to engage legal counsel for filing the appeal due to his ill health, which consumed time in preferring the captioned appeal.
(6) It is respectfully stated and submitted that after coming to know about the decision of the review application, the applicant had collected the papers for filing the accompanying second appeal and thereafter the appeal has been. prepared, which also consumed some time.
(7) It is respectfully stated and submitted that thus, the applicant has remained vigilant and was desirous always of challenging the impugned judgment, order and decree and due to paucity of funds as well as appearing before an inappropriate forum, there is some delay in preferring present accompanying appeal."
7. To condone delay under section 5 of the Limitation Act, the petitioner has taken aid of section 14 of the Limitation Act to exclude time period taken place in review proceedings, let refer section 14 of the Limitation Act.
Page 8 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined "14. Exclusion of time of proceeding bona fide in court without jurisdiction. --
(1)In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2)In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.(3)Notwithstanding anything contained in rule 2 of Order XXXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub- section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.--For the purposes of this section,--
(a)in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b)a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c)misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
8. Plain reading of section 14 of Limitation Act, construes that the petitioner who is claiming exclusion of time period of Page 9 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined proceedings must establish that he was prosecuting bona-fidely in Court having no jurisdiction with due diligence and in good faith. Phrase "Defect of jurisdiction" or "cause of a like nature"
are important. The petitioner who is claiming exclusion of time period taken in earlier proceedings must establish that it was his bona fide proceedings and he was believing that Court had jurisdiction to decide the matter, but ultimately the Court was lacking jurisdiction or cause of like nature, the Court had no jurisdiction.
9. The expression 'good faith' qualifies prosecuting the proceedings in the Court which ultimately is found to have no jurisdiction and if party bona fidely prosecuting wrong remedy or remedy in Court without jurisdiction, then exclusion under section 14 of the Limitation Act could be claimed and it can be good ground to condone delay.
10. In the case of Pattherao Narsu Patil @ Rajaram Dnyanu Patil (supra), in para 9, Bombay High Court has explained scope of section 14 of the Limitation Act, which reads as under :-
"9. It is well settled law that if the party is litigating its cause before the wrong forum under a bona fide belief as per the legal advice given by his advocate, the delay occurred in the said proceeding has to be taken into consideration for condonation of delay in preferring the appeal. This is well settled principle as recognised in Section 14 of the Limitation Act. This position was ignored by the trial judge and if the major part of the delay was on account of pendency of the review petition, and the said period if deducted, there was no delay in preferring the first appeal. In the circumstances, this was a fit case for condonation of the delay. If the learned first appellate Page 10 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined court had doubt about maintainability of the appeal, the same could have been decided at the time of hearing of the first appeal. In the result, substantial question No. (i) is answered in the affirmative. In view of these facts appeal deserves to be allowed."
11. The expression "cause of like nature" has been read ejusdem generis with expression of "defect of jurisdiction" in the case of Zafar Khan v/s. Board of Revenue, UP [AIR 1985 SC 39]. The Hon'ble Apex Court has held and observed as under :-
"In order to attract the application of Sec. 14(1), the parties seeking its benefit must satisfy the court that: (1) that the party as the plaintiff was prosecuting another civil proceeding with due; diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. When the expression in s.14 as a whole reads 'from defect of jurisdiction or other cause of a like nature is unable to entertain it' the expression 'cause of a like nature' will have to be read ejusdem generis with the expression 'defect of jurisdiction'. So construed the expression 'other cause of a like nature' must be so interpreted as to convey something analogous to the preceding words 'from defect of jurisdiction'. So construed the expression 'other cause of a like nature' must be so interpreted as to convey something analogous to the preceding words 'from defect of jurisdiction'. Prima facie it appears that there must be some preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits, such defect could be said to be 'of the like nature' as defect of jurisdiction. Conversely if the party seeking benefit of the provision of Sec. 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court of some other defect of a like nature, it would not be entitled to the benefit of Sec.14."Page 11 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024
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12. The word 'Good faith' is defined in section 2(h) of the Limitation Act, which reads as under :-
"2(h) "good faith" nothing shall be deemed to be done in good faith which is not done with due care and attention."
13. Judgment of Hon'ble Apex Court in the case of Deena (Dead) v/s. Bharat Singh (Dead) [(2002) 6 SCC 336] can be pressed into service. The Hon'ble Apex Court has held and observed as under :-
"The main factor which would influence the Court in extending the benefit of section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in section 14 means "exercise of due care and attention'. In the context of section 14 expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact."
14. Let examine submission of learned advocate Mr.Kavina for the petitioner in background of facts of the present case to see whether criteria laid down in section 14 of the Limitation Act and explained in aforesaid decisions are met with or not.
15. The plaintiff had filed Regular Civil Suit No.1567 of 1996 before the learned Trial Court, Vadodara. The suit was hotly contested by other side. Suit was filed for specific performance Page 12 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined of agricultural land situated in village Sevasi. The suit which was filed in the year 1996 before the learned Trial Court has been proceeded upto the year 2003 and learned Trial Court did not believe the case of the plaintiff and dismissed the suit on 07.05.2013. Immediately, thereafter, within time period, Regular Civil Appeal No.70 of 2013 was preferred. This first appeal was filed under section 96 of CPC challenging the judgment and decree passed by learned Trial Court. First Appeal received by the learned Appellate Court on 28.06.2013 was decided on 26.12.2013 against plaintiff. Learned Appellate Court after appreciating the evidence on record was pleased to dismiss the appeal. Immediately, within 10 days, Review petition was filed before the learned District Court, Vadodara under section 114 read with Order 47 Rule 1 of CPC. Necessary process was issued and Review Application No.1 of 2015 continued for hearing and ultimately was dismissed by order dated 27.08.2018. Finding and observation of learned Appellate Court while deciding review petition reads as under :-
"7. Thus, taking into consideration the aforesaid decisions and the scope of the review as envisaged in O-47, R-1 of C.P.C, the grounds put forward on behalf of the applicant to the effect that, the findings are recorded by the appellant court erroneously is not a ground for review. This court cannot reexamine the issue regarding cancellation of agreement to sell. The grounds set out in the application cannot be said to be error apparent on the face of record. Unless there is mistake apparent on the face of record, the judgment/order does not call for review. Moreover, misinterpretation of the provisions of law is also not a ground for review. This court while exercising the powers of review, cannot sit in appeal over the decision of my Ld. Predecessor dated 26.12.2013. The review does not permit Page 13 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined rehearing of the matter on merits, while exercising power of review. I cannot replace the findings recorded by my Ld. Predecessor. This court while exercising powers of review, cannot re-appreciate entire evidence or exercise jurisdiction as an appellate court. The decision relied upon by the Ld. Advocate for the applicant are not applicable to the facts of the present case. Thus, the grounds set out in the application do not fall within the purview of review. Resultantly, this revision application deserves to be dismissed and therefore, I pass the following order"
16. Thereafter, on 13.02.2019, the petitioner preferred present petition seeking condonation of delay of 1738 days. On going through pleadings of the present petition, no where the petitioner pleaded that Court which had heard and decided review petition had no jurisdiction to decide the application or it was case, prosecuting in wrong forum. Halfheartedly, the petitioner has stated that it was prosecuting lis in inappropriate forum. This Court is unable to find out how filing of review petition under section 114 read with Order 41 Rule 1 of CPC can be considered as litigating lis in inappropriate forum. It was conscious decision on the part of the petitioner to challenge judgment and decree passed by first appellate Court by way of Review petition. The petitioner has also prosecuted review petition and obtained judgment on merits and now the petitioner wants to exclude time period which undertaken for prosecuting review petition as legitimate lis before inappropriate forum. The petitioner has failed to establish on record any circumstances stated in section 14 of the Limitation Act. Firstly, the petitioner was perusing lis before forum available under law and it continued for more than 3 years and even the petitioner has obtained order on merits in review petition and now the Page 14 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined petitioner has preferred to file Second Appeal challenging judgment and decree passed by the First Appellate Court as well as learned Trial Court inspite of the fact that he has already challenged the same by way of review petition. So mala fide smacks. The petitioner has failed to prove that he was prosecuting in good faith though review court has no jurisdiction or it was perusing under defect of jurisdiction. Defect of jurisdiction is not proved. As held by Hon'ble Apex Court expression 'cause of like nature' has to be read ejusdem generis with defect of jurisdiction and any cause of like defect of jurisdiction must be pleaded and proved to attract section 14 of the Limitation Act. There are huge and stark difference between defect of jurisdiction and inappropriate forum.
17. In nutshell, none of the essential ingredient of section 14 of the Limitation Act are attracted in the present case. So exclusion of time period prosecuting review petition could not be considered as prosecuting lis before wrong forum under bona fide intention. Delay cannot be condoned under section 5 of the Limitation Act on this consideration.
18. In recent judgment in the case of Pathapati Subba Reddy (supra), the Hon'ble Apex Court surveyed earlier judgment and in para 26 laid down law, which reads as under :-
"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:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the Page 15 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined 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."
19. Pleadings or averments made in the petition does not attract any reason which could be said to be sufficient reasons explaining delay which prevented the petitioner from filing Second Appeal.
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20. Rule of limitation is based upon principles of sound public policy and principles of equity. Indeed expression 'sufficient cause' should receive liberal construction so as to advance substantial justice. This proposition comes into picture when no negligence or inaction or want of bona fide is imputable to party seeking condonation of delay. Whether explanation furnished would constitute 'sufficient cause' or not will depend on facts of each case and there cannot be straitjacket formula for accepting or rejecting explanation furnished for delay caused in taking steps. While considering the matter, the Court is also required to consider all the fact that why party has not taken steps within time prescribed. The Court should not lose sight of the fact that by not taking steps within the time prescribed time, valuable right has accrued to other party which should not lightly be defeated by condoning delay in routine like manner.
21. With profit, I may refer to judgment of Hon'ble Apex Court in the case of K.B.Lal (Krishna Bahadur Lal) v/s. Gyanendra Pratap [2024(0) AIJEL-SC 73515]. Para 10 of the said judgment reads as under :-
"10. There is no gainsaying the fact that the discretionary power of a court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of the litigant ( See Majji Sannemma @ Sanyasirao v. Reddy Sridevi and Others (2021) 18 SCC 384 ). The discretion is also not supposed to be exercised in the absence of any reasonable, satisfactory or appropriate explanation for the delay ( See P.K. Ramachandran vs. State of Kerala and Anr., (1997) 7 SCC 556 ). Thus, it is Page 17 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined apparent that the words sufficient cause' in Section 5 of the Limitation Act can only be given a liberal construction, when no negligence, nor inaction, nor want of bona fide is imputable to the litigant ( See Basawaraj and Anr. vs. Special Land Acquisition Officer., (2013) 14 SCC 81 ). The principles which are to be kept in mind for condonation of delay were succinctly summarised by this Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649, and are reproduced as under:
"21.1. (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.
21.2. (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. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (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.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (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.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (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 Page 18 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (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. 21.10. (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. (emphasis supplied) Having perused the application under Order IX, Rule 7 of the CPC dated 23.11.2020, filed by the appellant, and the accompanying affidavit, wherein the appellant had sought the benefit of Section 5 of the Limitation Act, for condonation of a delay of almost 14 years, we find there was no satisfactory or reasonable ground given by the appellant explaining the delay. We say this for two reasons. First, it is an admitted position by the appellant himself that upon an inspection of the case file in the year 2011, he came to know about the order dated 06.09.2006, by which the Trial Court had decided to proceed ex- parte against him. What prevented the appellant from filing the application under Order IX, Rule 7 that year itself has not been satisfactorily explained at all, as the first application was only filed in the year 2017. Secondly, the explanation offered by the appellant, which is that the advocate appointed by him did not pursue the matter diligently, and then another advocate was appointed by him who inadvertently forgot to file the application does not find support from the records. What is clear is that the appellant has been grossly negligent in pursuing the matter before the trial court. Thus, the trial court, the revisional court as well as the High Court, were correct in dismissing the belated claim of the Page 19 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024 NEUTRAL CITATION C/CA/137/2019 JUDGMENT DATED: 13/06/2024 undefined appellant. We find no reason to interfere with the impugned order dated 19.05.2022 of the High Court of Judicature at Allahabad."
22. In the facts of the case, the judgments relied by learned advocate for the petitioner is not helpful to the petitioner.
23. For the foregoing reasons, the petition stands dismissed. Registration of Second Appeal is refused. Second Appeal also stands disposed of.
(J. C. DOSHI,J) SATISH Page 20 of 20 Downloaded on : Thu Jun 20 20:31:49 IST 2024