Punjab-Haryana High Court
State Of Haryana vs Amin Chand Alias Amir Chand Son Of Mangat on 13 October, 2009
C.M. No. 1740-C of 2007 & 1
C.M. No. 1741-C of 2007 in
R.S.A. No. 644 of 2007
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.M. No. 1740-C of 2007 &
C.M. No. 1741-C of 2007 in
R.S.A. No. 644 of 2007
Date of Decision: 13.10.2009
1. State of Haryana, through Collector, Karnal.
2. Tehsildar (Sales), Sadar Bazar, Gandhi Chowk, Karnal.
... Applicants/Appellants
Versus
1. Amin Chand alias Amir Chand son of Mangat, resident of
village Garhi Bharal, Tehsil and District Karnal.
...Respondent
2. Union of India, through Secretary-Rehabilitation
Department, Govt. of India, New Delhi.
...Proforma-Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Ms. Rajat Goel, Assistant Advocate General, Haryana,
for the applicants/appellants.
Mr. Sanjiv Gupta, Advocate,
for respondent No. 1.
Service of respondent No. 2, already dispensed with.
SHAM SUNDER, J.
**** C.M. No. 1741-C of 2007, has been filed by the C.M. No. 1740-C of 2007 & 2 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 applicants/appellants, under Section 5 of the Limitation Act, read with Section 151 of the Code of Civil Procedure, for condonation of delay of 368 days, in filing the appeal, and C.M. No. 1740-C of 2007, has been filed for condonation of delay of 367 days, in refiling the appeal.
2. According to the applicants/appellants, after the dismissal of their appeal, by the Court of Additional District Judge, Karnal, vide judgement and decree dated 29.09.04, the District Attorney, Karnal, vide his letter dated 27.10.04, referred the matter, to the Law Department, Haryana, alongwith certified copies thereof. After receiving the letter dated 27.10.04, from the District Attorney, Karnal, the Law Department, Haryana, issued instructions, to the Advocate General, Haryana, vide letter dated 09.11.04, for filing a Regular Second Appeal, on behalf of the State. Thereafter, vide letter dated 18.11.04, the applicants/appellants, arranged the typed copies of the judgements and decrees of the Courts below. The office of the Advocate General, Haryana, vide letter dated 05.09.05, requisitioned the certified copies of the judgement and decree dated 03.04.01, rendered by the Court of Civil Judge (Junior Division), Karnal, from the quarters concerned, as a result whereof, the needful was done, vide letter dated 06.01.06. After completing all the formalities, the appeal, was filed, on 11.01.06, but till then, the period of limitation, for filing the appeal, stood already expired, on 08.01.05. It was further stated that the appeal, was returned with certain objections, by the Registry. It was further stated that owing to administrative exigencies, there was delay C.M. No. 1740-C of 2007 & 3 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 of 367 days, in refiling the appeal. It was further stated that due to the circumstances aforesaid, the appeal, could not be filed, and refiled, in time. Accordingly, the prayer, referred to above, was made.
3. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.
4. The Counsel for the applicants/appellants, reiterated the stand, taken up in the aforesaid applications, at the time of arguments. In addition, it was submitted by her, that the Courts, are required to adopt a liberal approach, in condoning the delay, in filing and refiling the appeal, howsoever, long, it may be, so as to decide the lis, on merits. She further submitted that the delay, referred to above, in filing and refiling the appeal, was on account of the circumstances, beyond the control of the applicants/appellants.
5. The Counsel for the respondent, however, submitted that no sufficient cause for condonation of such a long delay, in filing and refiling the appeal,was proved by the applicants. He further submitted that the delay was intentional and deliberate. He further submitted that the applications were liable to be dismissed.
6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the applications, are liable to be dismissed, for the reasons to be recorded, hereinafter. It is to be seen, as to whether, in view of the averments contained, in the applications, under disposal, a sufficient cause is constituted for condonation of delay, and, whether the law of C.M. No. 1740-C of 2007 & 4 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 limitation is to be enforced with all its rigour or the question of limitation has to be taken as a mere formality. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court, Volume-5 (hereinafter referred to as "the Rules"), deals with the limitation for refiling the appeal which reads as under:-
"5 Amendment-(1) The Deputy Registrar may return for amendment and refiling within a time not exceeding 10 days at a time, 40 days in aggregate, to be fixed by him any amendment of appeal for the reasons specified in Order XLI, Rule 3, Civil Procedure Code.
(2) If the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under sub-rule(1) it shall be listed for orders before the Court."
7. In view of the aforesaid rule, the returned appeal after removal/rectification of the objections, is required to be refiled within 10 days. However, the period can again be extended after the expiry of 10 days, for another 10 days and so on and, in any case, not exceeding 40 days in the aggregate.
8. In the present case, the grounds of administrative exigencies, were taken, by the applicants/appellants, for condonation of delay of 368 days, in filing the appeal, and delay of 367 days, in refiling the same. The principle of law, laid down, in Smt. Tara Wanti Vs. State of Haryana through the Collector, Kurukshetra, AIR, 1995, Punjab & Haryana 32 (Full Bench), was to the effect, that sufficient cause within the meaning of Section 5 Limitation Act, must be a cause, C.M. No. 1740-C of 2007 & 5 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 which is beyond the control of the party, invoking the aid of the Section and the test to be applied, would be, to see, as to whether, it was a bona-fide cause, in as much as nothing could be considered to be bonafide, which is not done, with due care and attention. Precisely the meaning of the word sufficient cause, and its scope should not be crystallized by any rigid definition. The delay from 09.11.04 to 05.09.05, was not explained, as no affidavit of any official of the office of the Advocate General, Haryana, was placed on the record. The administrative exigency does not mean that everything should move at a snails' speed. There was complete lack of bonafides and inaction on the part of the officers and officials who dealt with the case from time to time. There is, therefore, no sufficient cause for condonation of delay. It is settled principle of law, that rigour of limitation must apply, where the statute so prescribes. Limitation cannot be condoned, on the basis of compassion or equitable considerations, or where the party seeking condonation appears to be callous or negligent. The Hon'ble Supreme Court in Binod Bihari Singh Vs. Union of India, AIR 1993, SC 1245 held as under (at P1251 of AIR):-
"Limitation Act is a statute of repose and bar of a cause of action in a Court of law, which is otherwise lawful and valid because of undesirable lapse of time as contained in the Limitation Act, has been made on a well accepted principle of jurisprudence and public policy...
The rules of limitation are founded on consideration of public policy and the provisions of Act dealing with the limitation are required to be interpreted with the C.M. No. 1740-C of 2007 & 6 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 approach which advances the cause of public policy and not otherwise. The intention of the provisions of the law of limitation is not to give a right where there is none but to impose a bar after the specified period authorizing a litigant to enforce his existing right within the period of limitation (See AIR 1968 All
246). The object of limitation laws is to compel a litigant to be diligent in seeking remedies in a Court of law and put a bar on the stale claims. The interest of the society requires that the party should be put to litigation keeping in view its nature. The law assists the vigilant and not those who sleep over their rights. It is also acknowledges position of law that law of limitation only bars a remedy and does not take away the rights of the Courts to adjudicate the lis according to law and do not revive the rights of the parties unless permitted under a particular statute. Principles of Section 5 of the Limitation Act correspond to Sections 331 and 337 of the Code of Civil Procedure of 1859 and were first introduced in the Limitation Act of 1871 and thereafter repeated again with some modifications of Limitation Act of 1877. the Limitation Act, 1908 extended the principle of the section to applications or leave to appeal and to other applications to which the Act might be made applicable by or under a particular enactment for the time being in force. The section was again amended vide Act No. X of 1922 and keeping in view the long judicial experience and pronouncements made by various Courts, Section 5 has suitably been modified to achieve the objectives vide the provisions of Limitation Act No. 36 of 1963. To attract the provisions of Section 5 of the Limitation Act, a suitor is under an obligation to show that he had sufficient cause for not preferring the appeal or making application within the period of limitation prescribed under the said Act or under any other statute governing the filing of the appeals or applications. Even though normally the grounds of sufficient cause have been spelt out by various pronouncements of different High Courts and C.M. No. 1740-C of 2007 & 7 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 the Apex Court yet no ground can be held to be generally applicable without exception.
The question of existence of sufficient cause is to be decided on the basis of the facts and circumstances of each particular case. The Courts have found it difficult to generally define precisely the meaning of sufficient cause or sufficient reason. Making such an attempt would amount to crystallize into a rigid definition with judicial discretion which the Legislature has for the best of all reasons left undetermined and unfettered. Sufficient cause within the meaning of the Section must be a cause which is beyond the control of the party invoking the aid of the Section and the test to be applied would be to see as to whether it was a bonafide cause, in as much as nothing could be considered to be bonafide which is not done with due care and attention. The person invoking the jurisdiction of the Court for condonation of delay is required to satisfy the Court that he was unable to present his appeal in time on account of some misadventure or incapacity of the circumstances beyond his control or such sufficient cause which bonafide prevented him in filing the appeal within the prescribed limitation. Precisely, the meaning of the word sufficient cause and its scope should not be crystallized by any rigid definition."
The principle of law, laid down, in P.K. Ramachandran Vs. State of Kerala and another 1998 (1), S.L.J. 626 (SC), was to the effect 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 and the Courts have no power to extend the period of limitation, on equitable grounds. The principle of law, laid down, in Raghubansh Vs. State of Haryana and others, 1998(2) SLJ, 1277, was to the effect, that it does not seem to be possible, to say complete good-bye, to the Limitation Act and to hold that whatever be the delay and, howsoever, unsatisfactory the explanation, the Court is bound to condone it. In C.M. No. 1740-C of 2007 & 8 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 G. Ramegowday Vs. The Special Land Acquisition Officer, Bangalore, AIR, 1988 (SC), 897, the Hon'ble Supreme Court, has held that the contours of the area of discretion of the Courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court such as Ram Lal Vs. Rewa Coalfield Ltd. (1962) 2, SCR, 762: AIR 1962, SC, 361; Shakuntala Devi Vs. Kuntal Kumari (1969) 1, SCR, 1006: (AIR 1969 SC
575); Concord of India Insurance Co. Ltd.
Vs. Nirmala Devi (1979) 3, SCR, 694: AIR 1979, SC, 1666; Mata Din Vs. A. Naryanam (1970) 2, SCR 90: AIR 1970, SC, 1953;
Collector, Land Acquisition V. Katiji (1987) 2, SCC, 107: AIR 1987, SC, 1353. It was further held that there is no general principle, saving the party from all mistakes of its Counsel. Each case is required to be considered on the particularities of its own special facts. The Courts are, however, required to give liberal construction to the provisions of Section 5 of the Act in advancing substantial justice and delay may be condoned where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay. The fist of the principle of law, laid down, in the aforesaid authorities, is to the effect, that if gross negligence or deliberate inaction or lack of bonafides, is imputable to the party, seeking condonation of delay, the same cannot be condoned under any circumstances, and, in such like cases, the law of limitation is to be applied, with all its rigour."
9. In Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd., (2004) 3 SCC, 250, the Apex Court, held as under:-
"21..........It has to be remembered that law of limitation operates with all its rigour and C.M. No. 1740-C of 2007 & 9 C.M. No. 1741-C of 2007 in R.S.A. No. 644 of 2007 equitable considerations are out of place in applying the law of limitation. The cross- objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate Court the same grounds which he could have otherwise done by way of filing an appeal. This extended period of limitation commences from the date of service of the notice of appeal and such notice ought to be in a valid or competent appeal."
Since it was a case of total callousness and negligence, on the part of the applicants, the principle of law, laid down, in the aforesaid cases is fully applicable to the facts of the instant case. The applications are liable to be dismissed.
10. For the reasons recorded above, the applications for condonation of delay of 368 days, in filing the appeal, and of 367 days, in refiling the appeal, are dismissed, and consequently, the Regular Second Appeal, is also dismissed, being barred by time.
13.10.2009 (SHAM SUNDER) Amodh JUDGE