Jammu & Kashmir High Court
Satvir Gupta vs Union Of India (Uoi) And Ors. on 18 August, 2003
Equivalent citations: 2003(3)JKJ597
JUDGMENT Y.P. Nargotra, J.
1. The petitioner filed an application before the learned District Judge seeking for the setting aside the award dated 20.11.1981, filed in the Court for being made rule of the Court. The application of the petitioner was dismissed in default on 30.9.1996, due to the non-appearance of the petitioner and his counsel. The award was consequently made rule of the Court followed by a decree.
2. The petitioner on 8.3.2000 filed restoration application seeking the recall of the order dated 30.9.1996. He also filed an application seeking condonation of delay on the ground that he remained in bed for a period of more than three years due to disc problem occurring in the month of September 1996, That his advocate had all along made him to believe that his presence on every date of hearing was not necessary. That it is only in the month of January 2000 when he contacted his lawyer he came to know about the dismissal of the application. Where after the restoration application has been filed. The respondents contested the claim of the petitioner in their objections. In support of the application only the petitioner stepped into the witness box.
3. Learned District Judge has dismissed the application of the petitioner by his order impugned whereby he has refused the condonation of delay and this order is being assailed in this revision.
4. Learned counsel for the petitioner argued that the petitioner has been seriously contesting the case and has been non-suited by the learned trial court by giving a narrow construction to the provision contained in Section 5 of the Limitation Act. According to him in view of the law laid down by the Apex court in case The State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749, the expression 'sufficient cause' used in Section 5 has to be construed liberally, he has argued that the petitioner had sufficiently explained the causes which led to the delay in filing restoration application but the learned court below without appreciating the facts properly came to the view that delay has not been explained sufficiently. He has also contended that he had engaged a counsel and done everything he was expected to do but his counsel was negligent in not appearing before the court though he did told him that there was no necessity of appearance of the Petitioner on every date of hearing. In this situation, he was not in a position to contact his counsel because of his being ill so he cannot be penalized for the negligence of his counsel. He has relied upon AIR 1981 J&K 95.
5. In case The State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 S.C. 749, their lordships have held:-
"27. Mr. D. Mukherji, learned counsel for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is Government or a party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State"
"30. From the above observations it is clear that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party. "
6. In view of the observations of the Hon'ble Supreme Court the expression "sufficient Cause" should receive liberal construction when no negligence or inaction or want of bonafide is attributable to the petitioner. Admittedly, the petitioner was not present when his application was dismissed on 30.9.1996. He has stated that he was not attending the court on each date of hearing because the advocate engaged by him had told him that there was no necessity of his appearance on each date of hearing. Learned trial court has rejected the assertion of the petitioner on his behalf and rightly so because neither affidavit of his advocate was filed nor the advocate was examined by the petitioner. The petitioner says that he could not contact his lawyer to know about the case speaks of his gross inaction and negligence. On his own showing that he was having the phone Number of the advocate and has a telephone facilities at his residence, why did he no make a phone call for a period of more than three years? There cannot be any answer except his inaction and negligence. A party who had the means of acquiring knowledge of the order passed in his proceedings promptly but is not prompt in using such means cannot be allowed to urge that he acquired knowledge on a subsequent date than the date on which he could have acquired the knowledge, had he been prompt and diligent and employed such means. The petitioner has been sleeping over his rights for a period of over three years and did not make a phone call to his advocate, cannot in any manner be called diligent.
7. In other case, Shyam Lal Dhar v. Ply Board Industrie, AIR 1981 J&K 95 relied upon by the counsel for the petitioner, this court held:-
"5. On these observations, with which we generally agree, it necessarily follows that where the defendant employs a counsel for the purpose of his appearance in the court and the counsel neglects or fails to appear in the case, his neglect or failure, would constitute a sufficient cause for the non-appearance of the defendant within the meaning of Order 9, Rule 13 provided that the defendant had done all that was required of him to ensure that the counsel would represent him on all the necessary hearings, it also follows that where the delay in filing the application fro setting aside the ex parte decree is due to the negligence or failure of the counsel to inform the defendant that an ex parte decree had been passed against him, such negligent or failure would be a sufficient cause for condonation od delay under Section 5 of the Limitation Act provided the defendant had done all that was required of him in order to keep himself posted with the progress of the case. The Supreme Court of India has stated the same thing broadly in relation to Section 5 of the Limitation Act in the case of State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749 in these words (at p. 755).
"In construing Section 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 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 his 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 fro 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. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) 13 Mad 269, Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way which judicial power and discretion ought to be exercised upon the principles which are well understood; the words "Sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction for want of bonafide is imputable to the appellant."
8. Though the Advocate engaged by the petitioner has not been examined, yet assuming that the petitioner had done every thing what he was required to do, yet he cannot be allowed to throw all blame on his counsel. He could not be absolved of his appearance in the court regularly on the assurance of the advocate but he cannot be absolved of his duty to remain in touch with his advocate so as to know about the progress of the case. Had he remained in touch with the advocate, he would have immediately come to know about the dismissal of his case. It has been contended by the learned counsel that the petitioner was suffering from disc problem and thertefore, could not go to meet his lawyer. The petitioner has not led any evidence to show that for how much period he remained immobile. He has admitted that he has been moving about in connection with marriage or condolence, but still he does not seem to have cared much about his case because he did not try to meet his lawyer personally or on phone. The petitioner's cause was, therefore, rightly found that the learned court below as not sufficient for condonation of delay, under Section 5 of the Limitation Act. Liberal construction of Section 5 cannot be so liberal as to render the provisions of the Limitation Act non-existent. Rules of Limitation are prescribed so as to make the legal remedy available to diligent only. Section 5 is enacted for the benefit of such diligent litigants who cannot avail the remedy for the justifiable cause within the period of limitation prescribed for such remedy.
9. The petitioner had not the justifiable cause for not approaching the court for a period of more than three years. The impugned order of the Court below does not suffer from any legal infirmity.
10. The revision petition, therefore, is dismissed.