Smt. Mangi Bai vs . Smt. Kanku & Ors. on 6 May, 2015

[Cites 11, Cited by 1]

Rajasthan High Court - Jodhpur

Smt. Mangi Bai vs . Smt. Kanku & Ors. on 6 May, 2015

Mr. Sanjay Nahar, for respondent No.1 This first appeal under Section 96 CPC is laid on behalf of the appellant-defendant No.1 to challenge impugned judgment and decree dated 30th May, 2009 passed by the learned Additional District Judge No.1, Bhilwara, whereby the learned Court below passed preliminary decree for partition and restrained the defendants by permanent injunction not to alienate or transfer the house, nohra and agricultural land to any other person till partition of the property by metes and bounds in favour of plaintiff and against defendant No.1 while demarcating respective shares of all the parties.

The appeal is filed after delay of 600 days, therefore, appellant has also moved an application under Section 5 of the Limitation Act for condonation of delay. 2 Averments contained in the application reads as under :-

1. That the appellant has filed the present first appeal which is prima-facie arguable and the impugned judgment and decree is liable to be set aside.

2. That the appellant had engaged an advocate to take care of her interest in the property and after examination of witnesses, the appellant was never informed by the Advocate regarding final hearing of the suit, nor the appellant came to know through the concerned Advocate regarding judgment and decree having been passed against her on 30.5.2009. It is submitted that the appellant came to know of the preliminary decree very recently when after filing of application for preparation of final decree on 9.3.2010 notices of the same were issued.

3. That the appellant could not have gained anything from delayed filing of appeal and even when the appellant contacted her advocate in the learned trial Court upon receiving summons for preparation for final decree all that her advocate conveyed was that the appellant can challenge final decree in Civil First appeal. The appellant, therefore, was not aware about the judgment and decree under challenge nor aware about her right to file an appeal against the preliminary decree and the appellant therefore, was prevented bys sufficient cause in filing this appeal within the period of limitation. The delay caused in filing the appeal was therefore, bonafide and unintentional and the same deserves to be condoned. .

It is, therefore, most respectfully prayed that the foregoing application may kindly be allowed and the delay in filing the substitution application may kindly be condoned.

I have heard learned counsel for the appellant and perused the application.

Well it is true that a litigant cannot be made to suffer on account of omissions of a lawyer but some proof is required to be given that how and in what manner advocate was negligent in discharging its professional obligation.

In the application, the appellant has not averred that what action she has taken against the advocate, who represented her cause before the learned trial Court. Although the appellant, in the application under Section 5 of the Limitation Act, has admitted the fact that she came to know about the judgment and decree on 09.03.2010, yet the present appeal is filed on 20.04.2011 without tendering any plausible explanation for the interregnum period. The explanation tendered by the appellant for condonation of delay is per-se based on wholly vague, cryptic and unspecific averments.

There remains no quarrel that while exercising its judicial power and discretion, Court should adopt a liberal approach in construing word "sufficient cause", but liberal construction of the term does not mean that delay is to be condoned for mere askance and, even in cases where negligence and apathy of the litigant is clearly apparent and writ large. The expression "sufficient cause" is receiving a 4 liberal construction so as to advance substantial justice remains unquestionable and the law Courts are construing the same utmost liberally. However, when negligence or inaction on the part of a litigant is clearly visible and there is lack of bona fide on the part of a party delay is not liable to be condoned.

It is trite that law of limitation is based on public policy and its precise object is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. Therefore, the discretion conferred on the appellate courts to condone delay may be exercised to farther the interest of justice when the party seeking condonation of delay has furnished sufficient cause for the delay. A total inaction or indolence on the part of a litigant cannot persuade a Court to exercise its discretion to condone the delay in favour of a litigant. If such liberal approach is adopted by the law Courts, then it may render law of limitation nugatory and otiose, eventually putting premium over the total inaction and dormancy of a litigant for his legal rights. The averments contained in the application in the totality of the facts and circumstances of the instant case are not at all inspiring confidence so as to persuade this Court to exercise its 5 discretion for condonation of delay. The appellant has shown total callousness and apathy in availing the remedy of appeal by laying this appeal after inordinate delay of 600 days for which there is no cause much less sufficient cause.

Hon'ble Supreme Court in case of Basawaraj & Anr.V/s. Special Land Acquisition Officer [(2013) 14 SCC 81], while construing the expression "sufficient cause"

and examining the intent of statute of limitation, has held as under :-

9. Sufficient cause is the cause for which the defendant could not be blamed for his absence.

The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently"

or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building 6 Corpn. Ltd. v. Bhutnath Banerjee, Mata Din v. A. Narayanan, Parimal v. Veena and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai.)

10. In Arjun Singh v. Mohindra Kumar this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".

11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao.)

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.

13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from 7 lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266:

"605. Policy of the Limitation Acts.--The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project.) While construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for laying an appeal gives rise a right in favour of the decree holder to treat the decree as binding between parties. In other words, on expiry of prescribed period of limitation the decree holder acquires a benefit under law of limitation to construe 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 is to be kept in mind by the Court is that if sufficient cause for excusing 8 delay is shown by the party, Court in its discretion may condone the delay. It is needless to emphasize here that even after sufficient cause has been shown by a party, it is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act.

Therefore, viewed from any angle, I am not inclined to accede to the prayer of the appellant for condonation of delay and accordingly the application under Section 5 of the Limitation Act is rejected. The rejection of the application under Section 5 of the Limitation Act entails rejection of this appeal also and same is, therefore, dismissed.

(P.K. LOHRA) J.

a.asopa/-

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Rajasthan High Court - Jodhpur