Delhi High Court
Satyawan vs Uoi & Ors. on 9 October, 2015
Author: Vipin Sanghi
Bench: Vipin Sanghi
$~14.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 09.10.2015
% RSA 352/2014
SATYAWAN ..... Appellant
Through: Mr. Sanjeet Ranjan, Advocate.
versus
UOI & ORS ..... Respondents
Through: Mr. Jaswinder Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The present second appeal is directed against the order dated
16.07.2014 passed by the learned Additional District Judge (Central-07), Tis
Hazari Courts, Delhi in RCA No.79/2013. By the impugned order, the first
appeal preferred by the appellant/ plaintiff to assail the judgment and decree
dated 12.08.2013 passed in the appellant's Suit No.1567/2006, has been
dismissed as being barred by limitation. The application preferred by the
appellant under Section 5 of the Limitation Act, 1963 to seek condonation of
98 days in filing the first appeal has been rejected as not disclosing
"sufficient cause" to explain the delay.
2. The appellant/ plaintiff was enrolled in Central Industrial Security
Force (CISF) as a Constable. He was charge-sheeted on the ground that he
had left the Unit without prior approval and had not gone to Chandigarh as
directed. A departmental inquiry followed, which found him guilty of
RSA 352/2014 Page 1 of 12
misconduct. Accordingly, he was dismissed from service.
3. The appellant then preferred the aforesaid suit to seek a declaration
and consequential reliefs in respect of his dismissal from service. The Trial
Court, namely the Senior Civil Judge-cum-Rent Controller (Central), Tis
Hazari Courts, Delhi dismissed the suit vide judgment and decree dated
12.08.2013.
4. Along with the first appeal, the appellant filed an application to seek
condonation of 98 days delay in preferring the said first appeal. The reason
given for the delay in the said application was that after passing of the
impugned judgment of the Trial Court, the appellant had been seeking legal
opinion from various advocates to file the appeal. He also stated that he had
not been keeping well. He stated that he had entrusted his file to the Clerk
of an Advocate for preferring the appeal. However, the Clerk lost the file
while the office was being shifted. Consequently, the appeal could not be
preferred. The Clerk had not disclosed about the loss of the file either to the
appellant, or the concerned Advocate in time. He also stated that when the
appellant became aware that the appeal had not been preferred, since the file
had been lost, he approached the Advocate directly, and finally, the file was
traced out from the record. The aforesaid developments led to the delay of
98 days in filing the appeal.
5. The First Appellate Court, while rejecting the application seeking
condonation of delay, observed that the appellant had not disclosed the name
of the advocates he approached to obtain legal opinion and the dates when
he had approached them. He also did not disclose the period when he
RSA 352/2014 Page 2 of 12
remained unwell and the cause of his illness. He did not file documents in
support of his illness. He did not disclose the name of the Advocate to
whom he entrusted the file and the date of such entrustment. He also did not
disclose the name of the Clerk, nor the address of the office which was being
shifted. He also did not disclose the date when he came to know about the
loss of his case file and when he approached the concerned counsel. He also
did not disclose the date when the said file was traced out, and how. The
First Appellate Court observed that the averments made in the application
were vague in nature.
6. The submission of learned counsel for the appellant is that the
approach of the First Appellate Court in dealing with the application under
Section 5 of the Limitation Act was extremely narrow.
7. Learned counsel has placed reliance on two decisions of the Supreme
Court in Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao
and Others, (2002) 3 SCC 195; and S. Ganesharaju (Dead) Through LRs
Vs. Narasamma (Dead) Through LRs and Others, (2013) 11 SCC 341, to
submit that the trend of the Courts while dealing with matters of
condonation of delay had tilted more towards condoning the delay and
directing the parties to contest the matter on merits. Such technicalities have
been given a go-bye. The expression "sufficient cause" not having been
defined, the Courts have been left to exercise their discretion to come to the
conclusion whether the circumstances exist which establish "sufficient
cause". The Courts have to see whether a party has acted with reasonable
diligence, and has not been negligent and callous in the prosecution of the
matter.
RSA 352/2014 Page 3 of 12
8. Learned counsel submits that there was no basis for the First
Appellate Court to assume that the counsel in whose office the file got
misplaced was some other counsel, and not the counsel by whom the said
application and first appeal had been preferred. It had not been stated by the
appellant that after the file was traced in the office of the counsel, he had
changed the counsel, who had then filed the first appeal. In any event, even
if there were any unanswered questions, the appellant could have been given
an opportunity to file a better affidavit, rather than the dismissal of the
application seeking condonation of delay being handed down by the First
Appellate Court.
9. On the other hand, learned counsel for the respondent submits that the
issue with regard to the dismissal of the application under Section 5 of the
Limitation Act does not raise a substantial question of law for consideration
in a regular second appeal. In this regard, he places reliance on the
judgment of the Division Bench of the High Court of Madhya Pradesh in
Ajitsingh & Another Vs. Bhagwanlal Master & Others, AIR 1989 MP 302,
wherein the Division Bench has observed that when the lower Appellate
Court exercises its jurisdiction to dismiss the appeal as time-barred under
new Rule 3A of Order 41 CPC, it merely decides the question as to whether
the appellant had "sufficient cause" for not presenting the appeal within the
period prescribed by law of limitation, and that question evidently would be
a pure question of facts. The Division Bench observed that if a second
appeal is allowed, that would tantamount to allowing deliberately the
workload of the High Court to increase illogically and irrationally. The
Division Bench further observed that there would be no occasion for the
RSA 352/2014 Page 4 of 12
High court in such a case to deal with any question of law.
10. Having heard learned counsels, perused the impugned order, the
judgments of the Supreme Court relied upon by the appellant as well as the
judgment of the Division Bench of the High Court of Madhya Pradesh relied
upon by learned counsel for the respondent, I am inclined to allow the
present appeal.
11. The observations made by the Division Bench of the High Court of
Madhya Pradesh with regard to the nature of the question involved in a
second appeal - which arises on account of dismissal of the first appeal as
being barred by limitation under Rule 3A of Order XLI CPC, in my view,
are observations which cannot be said to constitute the ratio of the said
decision. There is no discussion found in the said judgment, on the basis of
which it could be concluded that in every such case, the question that would
arise of consideration would be only a pure question/issue of fact. The
proposition stated by the Division Bench, with due respect, appears to be
very broadly stated. It cannot be said that in every case the dismissal of the
application under Order XLI Rule 3A read with Section 5 of the Limitation
Act would raise only a question of fact, with regard to the cause for the
delay being sufficient, or not.
12. The present case is a live example where the question arising in the
present appeal cannot be said to be merely a question of fact. It raises a
question of law, and that too, a substantial question of law, since it concerns
the approach that should be adopted by the First Appellate Court in dealing
with the appellant's application under Section 5 read with Order XLI Rule
RSA 352/2014 Page 5 of 12
3A CPC. The manner in which the discretion is exercised by the Court,
while dealing with an application under Section 5 of the Limitation Act, read
with Order 41 Rule 3A CPC may raise an substantial question of law, if the
exercise of that discretion is not founded upon correct principles. If the
approach of the First Appellate Court in dealing with the said application is
not in accordance with law, the same would certainly raise a substantial
question of law for consideration of this Court.
13. With greatest respect, I cannot agree with the observations made by
the Hon'ble Division Bench of the High Court of Madhya Pradesh that to
allow such appeals would lead to increase, illogically and irrationally, the
workload of the High Court. The Courts of justice are meant to dispense
justice to parties wherever a good cause is shown, and merely on account of
the fact that inflow of cases may increase, the Courts would not shun their
responsibility and shut out even deserving cases.
14. The approach of the First Appellate Court has been myopic in dealing
with the application of the appellant under Section 5 read with Order XLI
Rule 3A CPC. The First Appellate Court has assumed that the appellant had
approached the Clerk of some other counsel, or some other counsel, or that
the file had been misplaced in the office of some other counsel. The
appellant did not claim that after the file had been traced in the office of the
counsel, he had approached some other counsel to file the first appeal.
Therefore, no fault could be found with the appellant in not disclosing the
name of the counsel, or the Clerk in his application.
15. In any event, even if there were unanswered questions which the
RSA 352/2014 Page 6 of 12
Court desired the appellant to answer to be convinced that he was not
callous in his approach to the Appellate Court, the Court should have
granted an opportunity to the appellant to file a better affidavit. The
valuable right of first appeal available to the plaintiff/ appellant, who had
contested the suit for nearly 16 years, should not have been shut out on such
a technicality. The delay of 98 days in preferring the first appeal could not
be said to be so gross, as to per se lead the First Appellate Court to conclude
that the appellant had been completely callous, or indifferent to his right to
prefer the first appeal. The First Appellate Court should not have lost sight
of the fact that the appellant had been dismissed from service while serving
as a Constable in the year 1994, and for a person who has already been in
litigation for 16 years, it may not have been possible to garner the resources
to prefer a first appeal very easily. The appellant had nothing to gain by
delaying his approach to the Appellate Court. The same could not be said to
be deliberate or calculated to serve any other objective. At the same time,
the delay in filing the first appeal did not cause the respondent to suffer any
prejudice. It is not that the respondent was waiting for the appellant to prefer
an appeal, and the same not having been preferred in time, it has altered its
position to its prejudice.
16. The Supreme Court in Ram Nath Sao @ Ram Nath Sahu (supra)
observed in paragraphs 12 & 13 as follows:
"12. Thus it becomes plain that the expression "sufficient
cause" within the meaning of Section 5 of the Act or Order 22
Rule 9 of the Code or any other similar provision should
receive a liberal construction so as to advance substantial
justice when no negligence or inaction or want of bona fide is
RSA 352/2014 Page 7 of 12
imputable to a party. In a particular case whether explanation
furnished would constitute "sufficient cause" or not will be
dependant upon facts of each case. There cannot be a
straitjacket formula for accepting or rejecting explanation
furnished for the delay caused in taking steps. But one thing is
clear that the courts should not proceed with the tendency of
finding fault with the cause shown and reject the petition by a
slipshod order in over jubilation of disposal drive. Acceptance
of explanation furnished should be the rule and refusal an
exception more so when no negligence or inaction or want of
bona fide can be imputed to the defaulting party. On the other
hand, while considering the matter the courts should not lose
sight of the fact that by not taking steps within the time
prescribed a valuable right has accrued to the other party
which should not be lightly defeated by condoning delay in a
routine like manner. However, by taking a pedantic and hyper
technical view of the matter the explanation furnished should
not be rejected when stakes are high and/or arguable points of
facts and law are involved in the case, causing enormous loss
and irreparable injury to the party against whom the lis
terminates either by default or inaction and defeating
valuable right of such a party to have the decision on merit.
While considering the matter, courts have to strike a balance
between resultant effect of the order it is going to pass upon
the parties either way.
13. In view of the foregoing discussions, we are clearly of the
opinion that on the facts of present case, Division Bench of the
High Court was not justified in upholding order passed by the
learned Single Judge whereby prayers for condonation of delay
and setting aside abatement were refused and accordingly the
delay in filing the petition for setting aside abatement is
condoned, abatement is set aside and prayer for substitution is
granted."
(Emphasis Supplied)
17. In this decision, the Supreme Court cited several earlier decisions,
including the decision in N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7
RSA 352/2014 Page 8 of 12
SCC 123. In that case, the application filed to seek setting aside of the ex-
parte decree was delayed by 883 days. The Supreme Court in the said
decision observed as follows:
"8. The appellant's conduct does not on the whole warrant to
castigate him as an irresponsible litigant. What he did in
defending the suit was not very much far from what a litigant
would broadly do. Of course, it may be said that he should have
been more vigilant by visiting his advocate at short intervals to
check up the progress of the litigation. But during these days
when everybody is fully occupied with his own avocation of life
an omission to adopt such extra vigilance need not be used as a
ground to depict him as a litigant not aware of his
responsibilities, and to visit him with drastic consequences.
9. It is axiomatic that condonation of delay is a matter of
discretion of the court. Section 5 of the Limitation Act does not
say that such discretion can be exercised only if the delay is
within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion. Sometimes
delay of the shortest range may be uncondonable due to a want
of acceptable explanation whereas in certain other cases, delay
of a very long range can be condoned as the explanation
thereof is satisfactory. Once the court accepts the explanation
as sufficient, it is the result of positive exercise of discretion
and normally the superior court should not disturb such
finding, much less in revisional jurisdiction, unless the exercise
of discretion was on wholly untenable grounds or arbitrary or
perverse. But it is a different matter when the first court refuses
to condone the delay. In such cases, the superior court would
be free to consider the cause shown for the delay afresh and it
is open to such superior court to come to its own finding even
untrammeled by the conclusion of the lower court.
10 x x x x x x x x x
The primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice. The
RSA 352/2014 Page 9 of 12
timelimit fixed for approaching the court in different situations
is not because on the expiry of such time a bad cause would
transform into a good cause.
18. In N. Balakrishnan (supra), the Supreme Court further observed:
"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 their remedy promptly.
The idea is that every legal remedy must be kept alive for a
legislatively fixed period of time.
12. A court knows that refusal to condone delay would
result in foreclosing a suitor from putting forth his cause.
There is no presumption that delay in approaching the court
is always deliberate. This Court has held that the words
"sufficient cause" under Section 5 of the Limitation Act
should receive a liberal construction so as to advance
substantial justice vide Shakuntala Devi Jain v. Kuntal
Kumari (1969) 1 SCR 1006 and State of W.B. v.
Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there
can be some lapse on the part of the litigant concerned. That
alone is not enough to turn down his plea and to shut the door
RSA 352/2014 Page 10 of 12
against him. If the explanation does not smack of mala fides
or it is not put forth as part of a dilatory strategy, the court
must show utmost consideration to the suitor. But when there
is reasonable ground to think that the delay was occasioned
by the party deliberately to gain time, then the court should
lean against acceptance of the explanation. While condoning
the delay, the court should not forget the opposite party
altogether. It must be borne in mind that he is a loser and he
too would have incurred quite large litigation expenses.
19. Similarly, in S. Ganesharaju (supra), the Supreme Court, inter alia,
observed:
"12. The expression "sufficient cause" as appearing in
Section 5 of the Indian Limitation Act, 1963, has to be given a
liberal construction so as to advance substantial justice.
Unless the respondents are able to show malafides in not
approaching the court within the period of limitation,
generally as a normal rule, delay should be condoned. The
trend of the courts while dealing with the matter with regard
to condonation of delay has tilted more towards condoning
delay and directing the parties to contest the matter on merits,
meaning thereby that such technicalities have been given a
go-by.
13. The Rules of limitation are not meant to destroy or
foreclose the right of parties. They are meant to see that parties
do not resort to dilatory tactics but seek their remedy promptly.
14. We are aware of the fact that refusal to condone delay
would result in foreclosing the suitor from putting forth his
cause. There is no presumption that delay in approaching the
court is always deliberate. In fact, it is always just, fair and
appropriate that matters should be heard on merits rather
than shutting the doors of justice at the threshold. Since
sufficient cause has not been defined, thus, the courts are left
to exercise a discretion to come to the conclusion whether
circumstances exist establishing sufficient cause. The only
guiding principle to be seen is whether a party has acted with
RSA 352/2014 Page 11 of 12
reasonable diligence and had not been negligent and callous
in the prosecution of the matter. In the instant case, we find
that appellants have shown sufficient cause seeking
condonation of delay and same has been explained
satisfactorily."
(Emphasis Supplied)
20. The substantial question of law which arises in the present case has
already been indicated in the earlier part of this judgment in para 12. The
same is answered in favour of the appellant. For the aforesaid reasons, the
present appeal is allowed and the impugned order is set aside. The appeal is
remitted back to the First Appellate Court for hearing on merits. The parties
shall appear before the First Appellate Court on 16.11.2015.
21. The present second appeal stands disposed of in the aforesaid terms.
VIPIN SANGHI, J.
OCTOBER 09, 2015 B.S. Rohella RSA 352/2014 Page 12 of 12