Rajasthan High Court - Jodhpur
Ram Bahadur vs Ramesh Goyal on 13 February, 2020
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil First Appeal No. 441/2019
Ram Bahadur
----Appellant
Versus
Ramesh Goyal
----Respondent
For Appellant(s) : Mr. GR Goyal
For Respondent(s) : Mr. Aakash Kukkar
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reportable 13/02/2020
1. The matter comes up on an application under Section 5 and 14 of the Limitation Act claiming the following reliefs:-
"It is, therefore, most respectfully prayed that application under Section 5 and 14 of the Limitation Act filed by the appellants/defendants may kindly be allowed and delay in filing the appeal may kindly be condoned and appeal may kindly be heard on merits"
2. Mr. G.R. Goyal, learned counsel for the appellants- defendants submits that the respondents-plaintiffs filed a suit for perpetual injunction and possession against the present appellants/defendants on 07.11.2014 in the Court of learned District Judge, Sri Ganganagar. In the said suit, service upon the present appellants/defendants was completed and a lawyer was accordingly engaged to represent them before the learned court below.
3. Learned counsel for the appellants-defendants further submits that unfortunately due to misunderstanding between the (Downloaded on 19/02/2020 at 08:29:33 PM) (2 of 21) [CFA-441/2019] party and the lawyer, the lawyer pleaded no instructions before the learned court below on 20.12.2017, and the information of which was not given to the party concerned i.e. the present appellants-defendants.
4. Learned counsel for the appellants-defendants also submits that since the lawyer did not represent the appellants- defendants in the aforesaid suit, therefore, on 16.01.2018, the learned court below, under Order 17 Rule 3 CPC, proceeded to close the evidence of the appellants-defendants and on 17.02.2018, the learned court below passed the impugned judgment and decree on merits. It is also contended that the notice of execution was issued by the learned executing court on 16.05.2019 by the executing court and accordingly, the appellants-defendants appeared before the learned executing court on 21.05.2019 through their lawyer.
5. Learned counsel for the appellants-defendants further submits that upon an advice of the local lawyer, an application under Order 9 Rule 13 of CPC was preferred on 03.07.2019 which admittedly did not carry therewith any application under Section 5 of the Limitation Act for condonation of delay. As per the counsel for the appellants-defendants, the said application under Order 9 Rule 13 of CPC was dismissed by the learned court below on 07.09.2019, but since the impugned judgment and decree dated 17.02.2018 entitled the appellants-defendants to prefer a direct appeal under Section 96 sub-section (2) of CPC, therefore, the appellants-defendants immediately filed the instant appeal on 23.09.2019 before this Hon'ble Court.
6. Learned counsel for the appellants-defendants also submits that though the complete narration of the facts is not (Downloaded on 19/02/2020 at 08:29:33 PM) (3 of 21) [CFA-441/2019] there in the application under Section 5 of Limitation Act, but the chronology has been clearly set up in the memo of appeal. In this regard, learned counsel for the appellants-defendants referred to the judgment rendered by the Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag & anr. Vs. Mst. Katiji & Ors. reported in AIR 1987 Supreme Court 1353, relevant portion whereof reads as under :-
"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:-
"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
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.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why (Downloaded on 19/02/2020 at 08:29:33 PM) (4 of 21) [CFA-441/2019] not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. "
7. Learned counsel for the appellants-defendants has also referred to the judgment rendered by this Hon'ble Court in Amar Singh Vs. Rajkumar reported in 2012(3) DNJ (Raj.) 1305, which went on to hold that even if an application filed under Order 9 Rule 13 CPC, is not accompanied by application under Section 5 of the Limitation Act, then also ample time ought to be given by the Court to file such application. The relevant portion of the said judgment reads as under :-
"9. Although it is true that an application under Section 5 of the Limitation Act was not filed seeking condonation of delay, but Judges are not to act as a mute witness in a trial. In catena of cases the Hon'ble Supreme Court has clearly held that the Judges have to play a pro-active role. Therefore, once it was brought to the notice of the court that an application under Section 5 of the Limitation Act was not filed, it was expected of the learned Judge to seek reasons from the appellant for not having filed the said application. In fact, ample time should have been given to the appellant to file the said application. However, in the present case, the learned Judge has failed to perform his duty. The consequence of his studied silence is that the appellant is deprived of his right to contest the civil suit. Obviously, the procedural law cannot be permitted to create obstacles in the path of justice."
8. Learned counsel for the appellants-defendants has also relied upon the judgment rendered by the Hon'ble Apex Court in the matter of Bhagmal & Ors. Vs. Kunwar Lal & Ors. reported in 2010 DNJ (SC) 968, in which, Hon'ble Apex Court has laid (Downloaded on 19/02/2020 at 08:29:33 PM) (5 of 21) [CFA-441/2019] down the law that hyper-technical view need not be taken in case of contest of a decree where the knowledge of such decree was acquired only after receipt of the notice of execution. The relevant portion of the said judgment reads as under :-
"5. This well considered order of the appellate Court came to be interfered with by the High Court solely on the ground that there was no application for condonation of delay made by the appellants/defendants before the Trial Court in support of their application under Order IX Rule 13 CPC. The High Court observed that the appellate Court had not recorded any finding on the question as to whether the filing of the application under Section 5 of the Limitation Act was necessary or not and went on to decide the application on merits and, therefore, it had exceeded its jurisdiction. The High Court also commented on the fact that the ex-parte decree was decided on 19.4.1985, while the application for setting aside the ex-parte decree was filed on 8.7.1988 and that no application for condonation of delay under Section 5 of the Limitation Act was filed.
7. In our opinion, the High Court was not justified in taking a hypertechnical view. We have seen all the orders. It is quite clear from the Trial Court's order that the Trial Court entertained the application on merits. The Trial Court undoubtedly has referred to the reply of the respondents to the effect that the application for setting aside the ex-parte decree was beyond the limitation. However, the view taken by the Trial Court was based more on the merits. In fact, it went on to record the finding that there was no compromise and the theory of compromise and delay on account of that was not acceptable. The Trial Court has more or the less based its findings regarding delay on the basis of the order sheets. That was not right as the order sheets nowhere bore the signatures of the parties. They were mechanically written mentioning "parties as before".
Therefore, the Trial Court did not throw the application under Order IX Rule 13 merely on the basis of the fact that no application for condonation of delay was made. It went on to consider the delay aspect as well as the merits and even allowed the parties to lead evidence. It is to be seen here that the question of delay was (Downloaded on 19/02/2020 at 08:29:33 PM) (6 of 21) [CFA-441/2019] completely interlinked with the merits of the matter. The appellants/defendants had clearly pleaded that they did not earlier come to the Court on account of the fact that they did not know about the order passed by the Court proceeding ex-parte and also the ex-parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellants/defendants for making the Order IX Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order IX Rule 13 application was, in our opinion, rightly considered by the appellate Court on merits and the appellate Court was absolutely right in coming to the conclusion that appellants/defendants were fully justified in filing the application under Order IX Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex-parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hyper-technical view that no separate application was filed under Section 5. The application under Order IX Rule 13 CPC itself had all the ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice. Here was a party which bona fide believed the assurance given in the compromise panchnama that the respondent No. 1/plaintiff would get his suit withdrawn or dismissed. The said compromise panchnama was made before the elders of the village. Writing was also effected, displaying that compromise. The witnesses were also examined. Under such circumstances, the non-attendance of the appellants/defendants, which was proved in the further proceedings, was quite justifiable. The appellants/defendants, when ultimately came to know about the decree, had moved the application within 30 days. In our opinion, that was sufficient. "
9. Learned counsel for the appellants-defendants has also relied upon the judgment rendered by the Hon'ble Apex Court in the matter of Bhivchandra Shankar More Vs. Balu Gangaram (Downloaded on 19/02/2020 at 08:29:33 PM) (7 of 21) [CFA-441/2019] More & Ors. reported in 2019(2) WLC (SC) Civil 386, in which, Hon'ble Apex Court has deliberated upon the scope of filing an appeal over and above the adjudication of application under Order 9 Rule 13 of CPC. The provision in relation to the remedy of appeal under Section 96 sub-section (2) of CPC even if an application under Order 9 Rule 13 of CPC has been dismissed, has been upheld. The relevant portion of said judgment reads as under :-
"12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in paras (36) and (38), it was held as under:-
"36. ............... A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. [See (2004) 5 SCC 385, Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd., Boaroda and Chandravathi P.K. and Others v. C.K. Saji and Others (2004) 3 SCC 734]." .................
"38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his (Downloaded on 19/02/2020 at 08:29:33 PM) (8 of 21) [CFA-441/2019] favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr Chaudhari that the "Explanation" appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhary (1982) 2 SCC 596, P. Kiran Kumar v. A.S. Khadar and Others (2002) 5 SCC 161 and Shyam Sundar Sarma v. Pannalal Jaiswal and Others (2005) 1 SCC 436."
13. After referring to its own judgment in Jotiba Limbaji, the High Court held that after the appeal from the order of the lower court refusing to set aside the ex-parte decree, the defendant may think of applying to the High Court in revision and in that process, considerable time might be lost. After referring to other judgments, in the impugned judgment, the High Court held as un- der:-
"15........... An unscrupulous defendant may file the application under Order IX Rule 13 CPC and carry the order to the highest forum irrespective of the merit in it and thereafter still file appeal against the decree. Considerable time would be lost for the plain- tiff in that case. Every provision under the law of procedure is aimed at justness, fairness and full opportunity of hearing to the parties to the court proceedings. It caters to every conceivable situation. But at the same time, the law expects a litigant to be straight, honest and fair. The two remedies provided against ex-parte decree are in respect of two different situations and are expected to be resorted to only if the facts of the situation are available to a litigant. The remedies provided as simultaneous and cannot be converted into consecutive remedies."
14. The above observation of the High Court that "the remedies provided as simultaneous and cannot be converted into consecu- tive remedies" cannot be applied in a rigid manner and as a strait- jacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies con- secutively, the court may decline to condone the delay (Downloaded on 19/02/2020 at 08:29:33 PM) (9 of 21) [CFA-441/2019] in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits.
15. It is a fairly well settled law that "sufficient cause"
should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under:-
"6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay."
16. Observing that the rules of limitation are not meant to destroy the rights of the parties, in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123, this Court held as under:-
"11. Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts.
So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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 put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek (Downloaded on 19/02/2020 at 08:29:33 PM) (10 of 21) [CFA-441/2019] their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time." As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay.
17. In the case in hand, respondents No.1 to 13 filed a suit for partition in the year 2007, which was decreed ex-parte on 04.07.2008. Appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC and the same came to be dismissed on 06.08.2010. Being aggrieved by dismissal of application under Order IX Rule 13 CPC, the appellant and respondents No.14 and 15 preferred an appeal under Order XLIII Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was pending for about three years and the same was withdrawn on 11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed an appeal challenging the ex-parte decree and judgment dated 04.07.2008 passed in Regular Civil Suit No.35 of 2007. It cannot be said that the appellant and respondents No.14 and 15 were grossly negligent in pursuing the matter more so, when the decree was passed in the suit for partition.
18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC.
19. In the facts and circumstances of the present case, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as "sufficient cause" for (Downloaded on 19/02/2020 at 08:29:33 PM) (11 of 21) [CFA-441/2019] condoning the delay in filing the first appeal. The impugned judgment of the High Court cannot be sustained and is liable to be set aside. "
10. Mr. Aakash Kukkar learned counsel for the respondents-
plaintiffs has, however, vehemently submitted that the appellants-
defendants has miserably failed to provide reasons for not appearing before the learned court below for a long period from
20.12.2017 to 17.02.2018. It is also contended that the delay caused upto 03.07.2019 i.e. when the application under Order 9 Rule 13 of CPC was preferred, is totally unexplained, and thus, under no circumstances, such delay could be condoned.
11. Learned counsel for the respondents-plaintiffs further submits that merely because the lawyer had pleaded no instructions, the appellants-defendants could not have gone to sleep over their rights, and wake up one fine morning to approach this Hon'ble Court in the appellate jurisdiction. It is also pointed out that the application under Order 9 Rule 13 of CPC was not accompanied by a proper application under Section 5 of the Limitation Act for condonation of delay, and therefore, it was rightly dismissed by the learned court below, and such a default, which had already arisen, could not be undone in the present appeal.
12. Learned counsel for the respondents-plaintiffs has relied upon the judgment rendered by Hon'ble Madras High Court in T.K. Subramaniam & Anr. Vs. Rukmani in CRP (NPD) No.4435/2012 decided on 20.02.2017. The relevant portion of the said judgment reads as under :-
"22.In this context a Division Bench decision of the Madras High Court in T.N.Mercantile Bank Ltd. V. Appellate Authority can be usefully referred to paras 14 and 17 are (Downloaded on 19/02/2020 at 08:29:33 PM) (12 of 21) [CFA-441/2019] relevant for our purpose, which read as under: (LLN pp. 462-64) 14.We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by delaying a matter, evidence relating to the matter in dispute may disappear and very often the party concerned may think that preserving the relevant records would be unnecessary in view of the fact that there was no further proceeding. If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceeding in the matter. Hence to view a matter of condonation of delay with a presupposition that no prejudiced will be caused by the condonation of delay to the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. "
13. Learned counsel for the respondents-plaintiffs has also relied upon the judgment rendered by the Hon'ble Apex Court in Basawaraj & Anr. Vs. Special Land Acquisition Officer reported in (2013) 14 Supreme Court Cases 81. The relevant portion of the said judgment reads as under :-
"9. Sufficient cause is the cause for which 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 view point 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 (Downloaded on 19/02/2020 at 08:29:33 PM) (13 of 21) [CFA-441/2019] "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 Corporation Ltd. v. Bhootnath Banerjee & Ors AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)
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.
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 bonafide 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 ground 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, (Downloaded on 19/02/2020 at 08:29:33 PM) (14 of 21) [CFA-441/2019] 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. "
14. Learned counsel for the respondents-plaintiffs has further relied upon the judgment rendered by this Hon'ble Court in the matter of Legal Heirs of Jayram Vs. Sant Ramdeendas in S.B. Civil First Appeal No.48/2019 decided on 27.05.2019. The relevant portion of the said judgment reads as under :-
"12. Learned counsel further submits that the reasons furnished by the appellants for absence of original- defendant before learned trial Court from the date of passing of ex-parte decree are absolutely vague, cryptic and unspecific and the learned trial Court has also found those reasons unsatisfactory while declining their prayer for setting ex-parte decree. Mr. Rajpurohit has also argued that plea of the appellants about failing health of original- defendant is not supported by any proof much less cogent proof, and therefore, the entire grounds set out for condonation of delay are wholly concocted and inspiring no confidence. Mr. Rajpurohit has also urged that before the executing Court, objections submitted by the appellants under Section 47 CPC are rejected by by the learned executing Court on 19 th of January, 2019 vide Annex.R/2 and while authenticating those objections appellants have also preferred this appeal is sufficient to show their conduct of pursuing two remedies simultaneously. He, therefore, submits that on equitable considerations also they are not entitled for grant of any indulgence on their application under Section 5 of the Limitation Act. In support of his arguments, learned counsel has placed reliance on following judgments:
i. Jai Lal & Anr. Vs. Chandro Devi & Ors. [2015 (2) RLW 1493 (Raj.)] ii. Jagdeesh Nayak Vs. Laxmi Narayana Dhobi (since deceased) through LR's [2017 (3) DNJ (Raj.) 1037] (8 of 15) [CFA-48/2019] iii. Smt. Mangi Bai Vs. Smt. Kanku & Ors.
[S.B.Civil Regular First Appeal No.805/2011, decided on 06.05.2011 by this Court].
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(15 of 21) [CFA-441/2019]
16. The judgment of Apex Court in Bhivchandra Shanlar More (supra), on which heavy reliance is placed by learned Senior Counsel for the appellants, lays down the law concerning approach of the Courts while construing the words "sufficient cause". Emphasis of the Court is to give liberal construction to the term. There remains no quarrel on the trite law that words "sufficient cause"
require liberal construction with pragmatic approach to farther the interests of justice. However, I am afraid, liberal construction cannot be overstretched so as to condone inordinate delay for mere askance. In the guise of liberal construction of the words, "sufficient cause", a total callousness, indolence and apathy of a litigant cannot be excused or camouflaged so as to render law of limitation nugatory or otiose. The legal maxim "dura lex sed lex", which means "the law is harsh, but it is the law", stands attracted in such a situation.
17. In the aforesaid case, defendant laid requisite application under Section 5 of the Limitation Act for setting aside ex-parte (10 of 15) [CFA-48/2019] decree with a specific plea of improper service of summons being served on his son residing in neighboring village in search of work. Further, it was alleged that the son did not inform his father about service of the summons. Therefore, in that background and peculiar circumstances, Apex Court emphasized for liberal construction of the words "sufficient cause". Here, in the instant matter, no such plea is raised by the appellants, nor is available to them, as observed hereinabove. Moreover, in the matter before Apex Court, the ex-parte preliminary decree against defendant was for partition and, therefore, considering his afflictions in larger perspective that non-challenge to preliminary decree of partition may preclude him for challenging final decree Court, took a benevolent view. The nature of the suit here is different. Therefore, on facts, judgment in Bhivchandra Shanlar More (supra) is clearly distinguishable.
18. Supreme Court in Ramlal & Ors. Vs. Rewa Coalfields Ltd. [AIR 1962 SC 361], while underlying principles relevant for consideration of application under Section 5 of the Limitation Act, held:
"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 (Downloaded on 19/02/2020 at 08:29:33 PM) (16 of 21) [CFA-441/2019] 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 (11 of 15) [CFA-48/2019] exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan I.L.R (1890).13 Mad.269.
"Section 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."
It is, however, necessary to emphasize that even after sufficient cause has been shown a party 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 S. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it." (Downloaded on 19/02/2020 at 08:29:33 PM)
(17 of 21) [CFA-441/2019] In the aforesaid judgment rendered in Legal Heirs of Jayram (supra), this Hon'ble Court has gone on the principles laid down by the Hon'ble Apex Court in the matter of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & ors. reported in 2013 (12) SCC 649, and the principles enunciated in para 20 of the judgment in Legal Heirs of Jayram (supra) reads as follows :-
"20. In the matter of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors. [2013 (12) SCC 649], Supreme Court laid emphasis on the obligation of Court, while dealing with application for condonation of delay and approach to be adopted upon consideration of grounds for condonation. After considering many earlier legal precedents, the Court broadly culled out following principles:
"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 (Downloaded on 19/02/2020 at 08:29:33 PM) (18 of 21) [CFA-441/2019] vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsule 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 the former doctrine of prejudice is attracted whereas 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. 21.11.(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12.(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13.(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.(Downloaded on 19/02/2020 at 08:29:33 PM)
(19 of 21) [CFA-441/2019] 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
15. After hearing learned counsel for the parties at length and perusing the record of the case alongwith precedent laws cited by learned counsel for both the parties, this Court is of the opinion that the principles enunciated by the Hon'ble Apex Court in the matter of Collector, Land Acquisition, Anantnag (supra) and Esha Bhattacharjee (supra), it is clearly laid down that the approach of the Court should be liberal, pragmatic, justice- oriented and non-pedantic, while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. The common thread running through the precedent law laid down by the Hon'ble Apex Court is that the terms "sufficient cause"
should be understood in their proper spirit, philosophy and purpose regards being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the prevailing factual situation. Further, the Hon'ble Apex Court has also emphasized upon the jurisprudence that substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis. Though in the (Downloaded on 19/02/2020 at 08:29:33 PM) (20 of 21) [CFA-441/2019] same breath, the Hon'ble Apex Court has also cautioned that the bonafides of the parties have to be taken care of and also unexplained inordinate delay warrants strict approach by the Courts, apart from the reasoning to be considered.
16. Thus, this Court, in the present facts and circumstances, is convinced that there was a valid reason for the delay caused, as the appellants-defendants, while adhering to the call of notice by the learned court below engaged a lawyer, but due to certain misunderstanding, the concerned lawyer, without informing the appellants-defendants pleaded no instructions, before the learned court below on 20.12.2017, which prompted the learned court below to proceed under Order 17 Rule 3 CPC on 16.01.2018 which culminated into a judgment and decree on 17.02.2018.
It was only when the notice of execution knocked the doors of the appellants-defendants, they became aware of the decree passed, and thus, thereafter, the sequence of steps taken by the appellants-defendants appears to be quite genuine, as they appeared before the learned executing court on 21.05.2019, and immediately, filed an application under Order 9 Rule 13 of CPC on 03.07.2019, which of-course was dismissed on 07.09.2019; aggrieved whereby the appellants-defendants approached this Court by filing the instant appeal under Section 96 sub-section (2) of CPC. The precedent law does not require the technicalities to over run the cause of justice.
17. On the merits, this Court is convinced that when the substantial justice is pitted against the technical consideration, then substantial justice deserves to be given preference over the latter, which cannot claim to have vested injustice to be done, (Downloaded on 19/02/2020 at 08:29:33 PM) (21 of 21) [CFA-441/2019] because of non-deliberate delay, in particular. Thus, in the present facts and circumstances, it can be safely presumed that the applicants-defendants had considerable and sufficient reasons for the delay, from 17.02.2018 to 23.09.2019 in filing the present appeal.
18. For the aforesaid reasons, the delay caused in filing the appeal is condoned.
19. The application under Section 5 of the Limitation Act stands disposed of accordingly.
20. List the appeal on 25.02.2020 for admission.
(DR.PUSHPENDRA SINGH BHATI),J 28-Sudheer/-
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