Himachal Pradesh High Court
___________________________________________________ vs Sangeeta Thakur And Others on 5 October, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CMP(M) No. 65 of 2016
.
Decided on: 5.10.2016
___________________________________________________
Municipal Corporation Shimla. ...Applicant.
Versus
Sangeeta Thakur and others. ...Respondents.
______________________________________________________________
of
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No
rt
For the Applicant: Mr. Hamender Chandel, Advocate.
For the Respondents: Mr. Chandernarayan Singh, Advocate for
respondent No.1.
Mr. Y.P. Rana, Advocate vice Mr. B.S.
Thakur, Advocate for respondent No.2.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral):
This order shall dispose of an application filed by the applicant under section 5 of the Limitation Act seeking condonation of 2 years and 12 days in filing the appeal. The only explanation offered in the application is that the delay has occurred on account of the matter having remained pending before various Sections of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:21:53 :::HCHP 2 Corporation and it was only after the receipt of the summons in the Execution Petition that a decision was .
taken to file the appeal. When the respondents in their reply contested the claim of the applicant claiming therein that no plausible explanation had been offered by the applicant, it was then the rejoinder was filed to of the reply wherein explanation now offered is that the first appellate court had dismissed the appeal vide its rt judgment and decree dated 24.8.2013, and thereafter, standing counsel of the applicant after going through the judgment and decree had opined that no further appeal be filed and accordingly, the file, on 25.11.2013, was sent to the concerned branch. It was only on the receipt of a letter dated 24.12.2015 from the Additional Chief Secretary (TCP) that the applicant decided to file an appeal and the same has thereafter been filed without any further delay.
2. I have heard the learned counsel for the parties and have gone through the pleadings.
3. Section 5 of the Limitation Act reads thus:-
"5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an ::: Downloaded on - 15/04/2017 21:21:53 :::HCHP 3 application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 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. Explanation---The fact that the appellant or the applicant was mislead by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient of cause within the meaning of this section."
4. The law of limitation is based on the legal rt maxim "Interest Reipubulicea Ut Sit Finis Litium" which means that it is for the general welfare that a period be put to litigation. It is more than settled that no litigant benefits by approaching the Court late. Without any good cause, no would like to have his claim extinguished.
5. The principles applicable to an application seeking condonation of delay were culled out by the Hon'ble Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649, in the following terms:-
"(i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing ::: Downloaded on - 15/04/2017 21:21:53 :::HCHP 4 with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
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(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.
(iii) Substantial justice being paramount and of pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate rt causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(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 vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict ::: Downloaded on - 15/04/2017 21:21:53 :::HCHP 5 approach whereas the second calls for a liberal delineation.
(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.
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(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 rt other side unnecessarily to face such a litigation.
(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.
(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.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
6. Testing the facts of the instant case on the basis of the aforesaid exposition of law, it would be noticed that the delay, as sought to be condoned is more than two years, therefore, the case warrants ::: Downloaded on - 15/04/2017 21:21:53 :::HCHP 6 stricter approach. It would be noticed that it was the applicant itself which has decided against the filing of .
the appeal as per the legal opinion given by its Standing Counsel. Admittedly, the Additional Chief Secretary (TCP) is not a party to the proceedings, and therefore, an opinion of third party could not be a ground for of condoning the delay. As per the averments contained in the rejoinder, the communication dated 14.12.2015 of rt the Additional Chief Secretary (TCP) only points out that the local residents of the society had submitted representation to the Government that in case the impugned decree is allowed to be executed then a grave inconvenience would be caused to the public. This in itself cannot be a ground for a statutory authority to seek condonation of delay or else it would amount to encouraging proxy litigation. If at all any person(s) is aggrieved by the judgment and decree, he is always free to approach this Court.
7. That apart it would be noticed that the explanation now sought to be given by the applicant in the rejoinder is absolutely contrary and at complete variance to the explanation offered in the application ::: Downloaded on - 15/04/2017 21:21:53 :::HCHP 7 wherein it was averred that the matter had remained pending before various Sections of the Corporation and .
it was only after the receipt of summons in the Execution Petition that a decision was taken to file an appeal. Thus, I have no hesitation to conclude that not only there is no sufficient cause shown by the applicant of whereby the delay can be condoned, but the applicant has also resorted to falsehood and, as such, is not
8. rt entitled to any discretionary relief.
In view of aforesaid discussion, even while taking an extreme liberal view, I find no cause much less sufficient cause for condoning the colossal delay of nearly two years in filing the appeal. Accordingly, the application is dismissed leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge.
5.10. 2016 *awasthi* ::: Downloaded on - 15/04/2017 21:21:53 :::HCHP