Jharkhand High Court
Dilip Kumar Keshri vs Jiwan Prakash Sah & Others .... .... .... ... on 25 August, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.157 of 2011
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Dilip Kumar Keshri .... .... .... Petitioner
Versus
Jiwan Prakash Sah & Others .... .... .... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioner : Mr. Ashish Jha, Advocate
For the Opposite Parties : Mr. Niraj Kishore, Advocate
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Order No.20 Dated- 25.08.2018
I.A. No.1333 of 2011
Heard the parties.
2. Learned counsel for the petitioner submits that this interlocutory application has been filed as an abundant caution to condone the delay, if any, in filing of the Civil Miscellaneous Petition No.157 of 2011 which was filed with a prayer to restore the Civil Miscellaneous Petition No.512 of 2007 to its original file.
3. It is further submitted by the learned counsel for the petitioner that the Civil Miscellaneous Petition No.157 of 2011 is a petition under Section 151 of the Code of Civil Procedure for restoration of the application bearing Civil Miscellaneous Petition No.512 of 2007, which, in turn, was filed with a prayer to restore Second Appeal No.159 of 2003 to its original file. It is further submitted by the learned counsel for the petitioner that this petition numbered as Civil Miscellaneous Petition No.157 of 2011 being an application filed invoking the jurisdiction of this Court under Section 151 of the Code of Civil Procedure for restoration of Civil Miscellaneous Petition No.512 of 2007 filed under Order XLI Rule 19 of the Code of Civil Procedure, the time period of limitation for filing of this application is covered by Article 137 of the Schedule for period of limitation of the Limitation Act, 1963, which prescribes a period of three years from the time when the right to apply accrues and is not covered by Article 122 of the said Schedule which prescribes a period of thirty days from the date of dismissal.
4. In support of his contention learned counsel for the petitioner relied upon the judgment of Patna High Court passed in the judgment of Siban Mahto versus Ramdhani Singh and Another reported in A.I.R. 1972 Patna 217, wherein the Hon'ble Patna High Court has held that an application filed under section 151 of the Code of Civil Procedure for restoration of an application under order IX, Rule 4 of the Code of Civil Procedure is not covered by Article 122 of the Limitation Act, but is covered only by the residuary Article 137 of the Limitation Act, for which the limitation prescribed is three years.
5. It is further submitted by the learned counsel for the petitioner that the petitioner could not take steps which were directed by this Court in Civil Miscellaneous Petition No.512 of 2007 as the advocate's clerk of the petitioner namely Suresh Chandra Verma was suffering from acute eye problem and he had undergone surgical operation because of which the Civil Miscellaneous Petition No.512 of 2007 was dismissed for default on account of non-compliance of the order dated 12.03.2010 and after recovery of the advocate's clerk, learned counsel for the petitioner wrote a letter to the petitioner for filing a restoration application as the petitioner was under the impression that the Civil Miscellaneous Petition No.512 of 2007 was still pending before the court. It is further submitted that there is no intentional delay or laches on the part of the petitioner and unless the Civil Miscellaneous Petition No.512 of 2007 is restored to its original file the petitioner will be put to irreparable loss and injury hence the delay, if any, be condoned and the Civil Miscellaneous Petition No.157 of 2011 be admitted for 'Hearing.'
6. Learned counsel for the opposite parties fairly submits that the judgment of Siban Mahto (supra) is a binding precedent upon this Bench. But he submits that the facts of Siban Mahto (supra) is entirely different from the facts of this case and the ratio of Siban Mahto (supra) is not applicable to the facts of this case.
7. It is further submitted by the learned counsel for the opposite parties that the period of limitation prescribed under the law of limitation by which a valuable right has accrued to a party to litigation by lapse of time should not be light-heartedly disturbed and that the discretion of condoning the delay vested upon the court should be exercised to advance substantial justice. In this respect, learned counsel for the opposite parties relied upon the judgment of Hon'ble Supreme Court of India in Ramlal and others versus Rewa Coalfields Ltd. reported in A.I.R. 1962 SC 361 whose paragraph-7 reads as under:-
"7. In construing Section 5 Limitation Act 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 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 exercised to advance substantial justice. ... ..."
8. It is further submitted by the learned counsel for the opposite parties that the length of delay is no matter, acceptability of the explanation is the only criterion for condoning the delay and in this respect the learned counsel for the opposite parties relied upon the judgment of Hon'ble Supreme Court of India in the case of N. Balakrishnan versus M. Krishnamurthy reported in (1998) 7 SCC 123 whose paragraph-9 reads as under:-
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 untrammelled by the conclusion of the lower court."
9. Learned counsel for the opposite parties further submitted that while condoning the delay the courts should not forget the opposite party altogether and the court must bear in mind that the opposite party is a loser and he too will incur quite large litigation expenses. So, when the courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss. In this respect, learned counsel for the opposite parties relied upon the judgment of Hon'ble Supreme Court of India in the case of N. Balakrishnan (supra) whose paragraph-13 reads as under:-
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 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. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
10. Further, learned counsel for the opposite parties submitted that the courts should not ignore the gaping holes in the case of a party seeking exercise of discretion for condoning the delay and in this respect, learned counsel for the opposite parties relied upon the judgment of Hon'ble Supreme Court of India in the case of Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai reported in (2012) 5 SCC 157.
11. It is next submitted by the learned counsel for the opposite parties that it is a settled proposition of law that the 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. In this respect, learned counsel for the opposite parties relied upon the judgment of Hon'ble Supreme Court of India in the case of Basawaraj and Another versus Special Land Acquisition Officer reported in (2013) 14 SCC 81 whose paragraphs-12 and 15 read as under:-
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 bona fide 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, 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."
12. It is further submitted by the learned counsel for the opposite parties that where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time and in this respect learned counsel for the opposite parties relied upon the judgment of Hon'ble Supreme Court of India in the case of Chhedi Lal Yadav and Others versus Hari Kishore Yadav (Dead) Through Legal Representatives and Others reported in (2018) 12 SCC 527 wherein the auction-sale took place in the year 1942 and the application for the restoration of the lands was first made in the year 1975 and the appeal from it was dismissed for default in the year 1983 and in the meanwhile the disputed lands changed hands twice and were in the possession of the appellant-writ petitioners of that case from 1962, the Hon'ble Supreme Court of India has held as under in para-13:-
13. "In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights."
13. Learned counsel for the opposite parties further submitted that in the supplementary affidavit filed by the petitioner it has been categorically mentioned that the said advocate clerk had undergone a surgical operation only on 06.10.2010 that is much after the dismissal of the Civil Miscellaneous Petition No.512 of 2007 for non-compliance of the orders of this Court on 19.03.2010. Hence, it is submitted that the undergoing of surgical operation of the concerned advocate's clerk is irrelevant so far as the delay caused in filing the Civil Miscellaneous Petition No.157 of 2011 is concerned. It is further submitted by the learned counsel for the opposite parties that here the Article 122 of the Schedule of the Limitation Act is applicable to the facts of the case and hence, this petition being hopelessly bared by time, the same be rejected and consequently the Civil Miscellaneous Petition No.157 of 2011 be dismissed being bared by time.
14. Having heard the submissions made at the Bar and after careful perusal of the record, I find that this application is in fact, an application under Section 151 of the Code of Civil Procedure which has been filed to restore an application under Order XLI Rule 19 of the Code of Civil Procedure. Hence, in view of the ratio of the judgment in the case of Siban Mahto versus Ramdhani Singh and Another (supra) the limitation of time for filing such a petition is covered by Article 137 of the Schedule of Limitation prescribed in the Limitation Act, 1963, for which the limitation prescribed is three years. Accordingly, the Civil Miscellaneous Petition No.157 of 2011 having been filed on 27.04.2011 with a prayer to restore the Civil Miscellaneous Petition No.512 of 2007 which was dismissed on 19.03.2010 is within time. Let Civil Miscellaneous Petition No.157 of 2011 be listed for hearing.
This Interlocutory Application is disposed of accordingly.
(Anil Kumar Choudhary, J.) C.M.P. No.157 of 2011 Learned counsel for the opposite parties submits that the petitioner has not supplied the copy of the Civil Miscellaneous Petition No.157 of 2011 to the opposite parties.
Learned counsel for the petitioner submits that he will supply a copy of the Civil Miscellaneous Petition No.157 of 2011 to the learned counsel appearing for the opposite parties during the course of the day.
Learned counsel for the opposite parties further submits that he wants four weeks' time to file the counter-affidavit.
Prayer for time to file the counter- affidavit is allowed as the last chance, keeping in view that this is a year old case.
List this Civil Miscellaneous Petition after four weeks under the heading for 'Hearing'.
AFR/ Animesh/ (Anil Kumar Choudhary, J.)