Himachal Pradesh High Court
A.S. Kang vs State Of Himachal Pradesh And Others on 20 June, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP No. 361 of 2023 and CMP(M)
.
No.47 of 2023 in CWP No.347 of 2006.
Date of decision: 20.06.2023.
A.S. Kang ......Applicant/Petitioner.
Versus
State of Himachal Pradesh and others
.....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No
For the Applicant/ : Mr. G.D.Verma, Senior Advocate
Petitioner with Mr. Pawan Gautam, Advocate.
For the Respondents : Mr. Anup Rattan, Advocate
General with Mr. I.N. Mehta, Mr.
Yashwardhan Chauhan, Senior
Additional Advocate Generals,
Mr. Ramakant Sharma,
Ms. Sharmila Patial, Additional
Advocate Generals and Ms.
Priyanka Chauhan, Deputy
Advocate General, for respondent
Nos. 1, 3 and 4.
Mr. Mehar Chand Thakur,
Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge (Oral)
The applicant/petitioner has filed an application, being CMP No. 361 of 2023, under Order 9 Rules 4 and 9 read with 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 26/06/2023 20:30:46 :::CIS 2 Section 151 CPC for setting aside the order passed by this Court on 27.02.2007 by virtue of which the writ petition was ordered to be .
dismissed on account of non-prosecution. The application is barred by 5755 days i.e. 15 years, 9 months and 10 days. Along with this application, the applicant/petitioner has also filed an application, being CMP(M) No. 47 of 2023, under Section 5 of the Limitation Act, for condonation of the aforesaid delay.
2. It is averred in the petition that the writ petition had been filed by the petitioner challenging the action of respondent No.2 i.e. Himachal Pradesh Small Industries Export Corporation (HPSIC) for recovery of a sum of Rs.1.99 lacs on various grounds.
The petitioner had engaged Shri Rajiv Kataria, Advocate, from Chandigarh, who had often been attending the case in this Court. He wanted that some local Lawyers need to be engaged and recommended the engagement of Shri S.D.Gill and Shri Imran Khan, Advocates, who are working together in Shimla.
3. The petitioner accordingly agreed and engaged Shri Rajiv Kataria, Advocate, from Chandigarh, to attend some important dates, whereas, most of the dates were attended by Shri S.D. Gill and his associates. The writ petition came up for hearing on 01.05.2006 which was attended by Shri Kataria, Advocate and an interim order against the recovery was passed by this Court. The ::: Downloaded on - 26/06/2023 20:30:46 :::CIS 3 subsequent dates thereafter as and when fixed were attended by Shri S.D.Gill, Advocate and his associates. The petitioner was .
informed that once the stay has been granted, then everything in this case would be filed by the respondents and the case would proceed in this Court.
4. However, unfortunately, when the case was fixed on 01.01.2007, cost was imposed by this Court to enable the petitioner to file rejoinder, but the petitioner was never informed and was not aware of the fact and when the case again came up for hearing on 27.02.2007, nobody appeared on behalf of the petitioner and the case was dismissed for non-prosecution.
5. The petitioner was neither aware of the proceedings subsequent to May 01, 2006 nor was he informed about the same.
The petitioner once or twice enquired from his counsel at Chandigarh, who asked the petitioner to directly contact Shri S.D.Gill, Advocate at Shimla and the petitioner did try to contact Shri S.D.Gill, Advocate, few times, in between, who informed him that as and when required, he would be informed, but he was neither informed nor received any communication either about the hearing of the case on 01.01.2007 or 27.02.2007. The petitioner sometimes had been trying to contact Shri S.D. Gill, Advocate, but always his phone was neither reachable nor reply was there. The petitioner ::: Downloaded on - 26/06/2023 20:30:46 :::CIS 4 then enquired from the local Counsel at Chandigarh, who also told him that once the Counsel at Shimla had been engaged, he would .
himself inform as and when required. Thereafter, the petitioner did not further enquire much about the case and remained under bonafide impression that the Counsels at Shimla were taking care of the case.
6. In the meantime, the petitioner had some unfortunate happenings in the family. Besides this, the petitioner also suffered a brain stroke because of which he is now paralyzed and cannot walk and is on wheel-chair. The brain stroke took substantial time of the petitioner to come to his normal senses. It was only in December, 2022 that the petitioner came to know that his property stands attached when notice was pasted outside his residence. He immediately contacted his counsel and has thereafter filed the instant petition.
7. Respondent No.2 has contested the petition by filing reply wherein preliminary objections regarding maintainability and the failure of the petitioner to explain the day-to-day delay has been raised. On merits, majority of the averments have been denied for want of knowledge. However, it has been categorically stated that since there is no sufficient cause shown by the petitioner, the delay cannot be condoned and the application may be dismissed.
::: Downloaded on - 26/06/2023 20:30:46 :::CIS 58. The petitioner has filed rejoinder to the reply filed by respondent No.2 wherein he has annexed a number of documents .
mainly in the shape of records from hospital in support of his claim that since the year 2003, the petitioner has off and on remained admitted in the hospital.
9. We have heard the learned counsel for the parties and have gone through the material placed on record.
10. The doctrine of delay cannot be lightly brushed aside.
A writ Court is required to weigh the explanation offered and the acceptability of the same. The Court has to bear in mind that it is exercising an extraordinary and equitable jurisdiction. The Courts have to keep themselves alive to the primary principle that when an aggrieved person, without adequate reason, approaches the Court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the application at a belated stage should be entertained or not. For, it has to be noted that delay comes in the way of equity. It will reflects inactivity and inaction on the part of a litigant. A litigant, who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
::: Downloaded on - 26/06/2023 20:30:46 :::CIS 611. In Municipal Council, Ahmednagar and another vs. Shah Hyder Beig and others (2000) 2 SCC 48, the Hon'ble .
Supreme Court observed that it is now a well settled principle of law that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. Thus, the application had to be filed promptly within 30 days, whereas, in the instant case, it has been filed after 5755 days' delay. It is more than settled that law assists those, who are vigilant and not who are indolent.
12. Coming to the facts, it would be noticed that petitioner after obtaining stay in the year 2006 did not care to know about the fate of his case for nearly 16 years to be precise 15 years 9 months and 10 days. One could appreciate that at any time there could be considerable delay in deciding the case before the High Court, but probably there has neither been any instances where the lis with a nature of civil writ petition would be on the dockets of the High Court for more than 15 years.
13. Even, as per the records annexed by the petitioner with his petition, the same pertains to the year 2003, whereas, the instant petition was filed much thereafter in the year 2006. The petitioner has not given any exact date when he suffered a brain stroke. But, taking the averments to be true, we really see no ::: Downloaded on - 26/06/2023 20:30:46 :::CIS 7 reason as to what would have prevented or what would have come in the way of the petitioner to try and ascertain the outcome of his .
case. The stroke that was suffered by the petitioner appears to be in the year 2017 i.e. after 10 years of his filing of the instant petition, yet even, during this time, the petitioner took no steps whatsoever to enquire about the outcome of his case.
14. Clearly, there is not only an inordinate delay, but the same has remained unexplained or rather reflects a lackadaisical attitude of the petitioner.
15. Consequently, the application being CMP(M) No.47 of 2023 for condonation of colossal delay of 5755 days', in filing the application under Order 9 Rules 4 and 9 read with Section 151 CPC, is dismissed.
CMP No. 361 of 2023.
16. Since, the petitioner has failed to show a sufficient cause for not having filed the application within a reasonable time, therefore, the same is also dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 20th June, 2023.
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