Himachal Pradesh High Court
Sh. Sudhir Sood vs Rmst. Katiji And Others on 9 March, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 9th DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
CIVIL MISC. PETITIONS (MAIN) NO. 1450 & 1451/2019
CMP (M) No. 1450/2019
BETWEEN:
SH. SUDHIR SOOD,
S/O SH. PYARE LAL SOOD,
R/O UPPER FLOOR, HOTEL SHORYA REGENCY,
FINGASK ESTATE, SHIMLA-3,
TEHSIL AND DISTRICT SHIMLA (HP)
....PETITIONER
(BY SH. ASHOK SOOD, SR. ADVOCATE
WITH MR. ABHISHEK BANTA, ADVOCATE)
AND
1. SURINDER KUMAR SOOD,
S/O SH. PYRE LAL SOOD,
R/O HOUSE NO. 182, SECTOR 16A,
CHANDIGARH.
2. SH. SUNIL SINGH,
SON OF SH. SURAT SINGH.
3. SH. ATTAR SINGH,
SON OF SH. DAULAT RAM,
R/O FLAT NO.201-202,
SECOND FLOOR, SNOW PEAK APARTMENTS,
FINGASK ESTATE, SHIMLA-3.
...RESPONDENT
(MR. JAGAN NATH, ADVOCATE, FOR R-1)
CMP (M) No. 1451/2019
BETWEEN:
SH. SUDHIR SOOD,
S/O SH. PYARE LAL SOOD,
R/O UPPER FLOOR, HOTEL SHORYA REGENCY,
FINGASK ESTATE, SHIMLA-3,
::: Downloaded on - 14/03/2022 20:10:54 :::CIS
2
TEHSIL AND DISTRICT SHIMLA (HP)
....PETITIONER
(BY SH. ASHOK SOOD, SR. ADVOCATE
WITH MR. ABHISHEK BANTA, ADVOCATE)
AND
.
1. SURINDER KUMAR SOOD,
S/O SH. PYRE LAL SOOD,
R/O HOUSE NO. 182, SECTOR 16A,
CHANDIGARH.
2. SMT. SUMEDHA, D/O PYRE LAL SOOD,
W/D OF LATE SH. NARESH CHAND SOOD,
R/O RAKSHA VIHAR, GROUP HOUSING SOCIETY,
FLAT NO.A-32, VIKAS PURI, NEW DELHI.
3. SMT. SNEH PRABHA,
D/O LATE SH. PYRE LAL SOOD,
W/O LATE SH. SHANTI KAROL,
R/O SHIV COTTAGE, OPPOSITE D D MEHTA
PETROL PUMP, SANJAULI, SHIMLA-6.
4. SMT. SUBALA,
D/O LATE SH. PYARE LAL SOOD,
W/O SH. PYARE LAL SOOD,
R/O RAMESH BHAWAN,
NAI ABADI, HOSHIARPUR, (PB).
...RESPONDENT
(MR. JAGAN NATH, ADVOCATE, FOR R-1)
__________________________________________________________________
The petitions coming on for admission after notice this
day, the court passed the following:
ORDER
Since common questions of law and facts arise for consideration in both these applications, therefore, the same were taken up together for consideration and are being disposed of by a common order.
::: Downloaded on - 14/03/2022 20:10:54 :::CIS 32 Aggrieved by the judgments and decrees passed by the learned trial court, the plaintiff/appellant/applicant has filed the appeals before this Court, however since the same were barred by 177 days and 180 days, therefore, he has filed the .
instant applications seeking condonation of delay in filing of the appeals.
3 It is contended by the applicant that he is an aged person of 70 years and is residing with his son at his residence at Tanda, who is posted as Doctor in Tanda Medical College from November 2018. The applicant due to his old age was not keeping good health and was having problem in breathing and it was for this precise reason, he has been residing at Tanda along with his wife as the weather at Tanda suited him more than Shimla. He returned to Shimla in the month of July 2019 in connection with another case at Shimla and then he went to his counsel, who apprised him that the instant cases have been decided and in case he wants to file the appeal, the same would be time barred.
It is further averred that the applicant had contacted his counsel in October 2018, who told him that the case would be listed for orders in November, 2018. However, due to old age and tendency to forget things, the applicant could not contact his counsel and enquire about the status of the case(s), hence delay in filing of the appeals, as occurred, is neither deliberate nor willful. Hence, the instant applicants.
::: Downloaded on - 14/03/2022 20:10:54 :::CIS 44 Respondent No.1 has contested the applications by filing detailed replies, wherein preliminary objections regarding maintainability and the applicant having concealed the material facts were taken. In addition thereto, it has been averred that .
the entire family members of the applicant are permanently residing at Shimla and, therefore, there was no action for the applicant to reside at Tanda for about 9 months and the applicant was already informed by his counsel in the month of October 2018 that the matter would be listed in the month of November 2018. In such circumstances, the applicant ought to have contacted his counsel in November 2018 itself and therefore, both these applications lack bona fides and deserve to be dismissed.
5 On merits, preliminary objections have been reiterated and it has been stated that no doubt, son of the applicant is residing at Tanda, but he has been residing there alone as his family is residing at Shimla because his daughter-in-law, i.e. wife of his son, is a government employee and posted at IGMC Shimla and grand-daughter is also studying at Tara Hall School, Shimla. Hence, there was no occasion for the applicant to reside at Tanda all throughout. It is also averred that the contents of the applications are otherwise false as next date of case was communicated to the counsel and the parties in the open Court.
::: Downloaded on - 14/03/2022 20:10:54 :::CIS 56 Confronted with this, learned counsel for the applicant has filed additional affidavit(s), wherein it has been stated that the applicant had undergone angiography at Batra Hospital, New Delhi in the year 2000 and thereafter he is under .
regular treatment with IGMC Shimla for his heart ailment, which is now increasing on account of old age. It is claimed that the applicant was residing with his son Dr. Attal Sood at Tanda since November 2018 and during his stay at Tanda, the applicant all of a sudden suffered acute breathing problem, for which he happened to be treated in Dr. Rajinder Parshad Government Medical College and Hospital, Kangra at Tanda on 11.5.2019 as an outdoor patient. It is thereafter that the applicant visited the office of the Advocate in July 2019 and after getting documents, has filed the appeals promptly.
7 I have heard the learned counsel for the parties and have also gone through the material placed on record.
8 Section 5 of the Limitation Act reads thus:-
"5. Extension of prescribed period in certain cases-- Any appeal or any application, other than an 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 misled by any order, practice or judgment of the High ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 6 Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
9 The law of limitation is based on the legal maxim "interest reipubulicae up 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 one would like to have his claim extinguished.
10 In Collector, Land Acquisition, Anantnag and another versus rMst. Katiji and others, AIR 1987 SC 1353, the Hon'ble Supreme Court, while laying down certain principles for condonation of delay, made a significant departure from the earlier judgments and observed as under:-
"3.The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiable liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
1.Ordinary a litigant does not stand to benefit by lodging an appeal late.::: Downloaded on - 14/03/2022 20:10:54 :::CIS 7
2.Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-
deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence,or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 8 hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents .
the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits......"
11 A three Judge Bench of the Hon'ble Supreme Court in the case of State of Haryana versus Chandra Mani and others (1996) 3 SCC 132 has held as under: (SCC pp. 135-36, para 7):-
"7.....The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so......"
12 In N. Balakrishnan versus M. Krishnamurthy, (1998) 7 SCC 123, the scope and ambit of law of limitation was ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 9 explained by the Hon'ble Supreme Court in the following manner:-
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 want of acceptable explanation whereas in certain other cases delay of 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 whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut 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 untrammeled by the conclusion of the lower court.
10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.
11.Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 10 suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may .
lead to unending uncertainty and consequential anarchy.
Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal Vs. Administrator, Howrah Municipality, AIR 1972 SC 749.
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 delay the Count should not forget the opposite party altogether. It must be borne in mind that he ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 11 is a looser and he too would have incurred quiet a 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."
.
13 In S. Ganesharaju (dead) through LRs. and another versus Narasamma (dead) through LRs. and others (2013) 11 SCC 341, the Hon'ble Supreme Court in unequivocal terms held that expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice and unless the opposite party is able to show mala fides in not approaching the Court within the prescribed period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matters on merits, meaning thereby that such technicalities have been given a go-by. It is apt to reproduce the following observations:-
"12. The expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the Court within the prescribed period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 12 towards condoning delay and directing the parties to contest the matters on merits, meaning thereby that such technicalities have been given a go-by.
14. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his .
cause. There is no presumption that delay in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that the appellants have shown sufficient cause seeking condonation of delay and the same has been explained satisfactorily."
14 In Esha Bhattacharjee versus Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649, the Hon'ble Supreme Court laid down the following guidelines for condonation of delay:-
i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(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.
::: Downloaded on - 14/03/2022 20:10:54 :::CIS 13(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate 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 encapsulate 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 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.
(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 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.
::: Downloaded on - 14/03/2022 20:10:54 :::CIS 14(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."
15 A two Judge Bench of the Hon'ble Supreme Court in the case of Dhiraj Singh (dead) through legal representatives and others versus State of Haryana and others (2014) 14 SCC 127 observed as under: (SCC p. 131, para 15).
"15.......The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations....."
16 In B.S. Sheshagiri Setty and others versus State of Karnataka and others, (2016) 2 SCC 123, the Hon'ble Supreme Court has held that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. It is apt to reproduce the following observations:-
"28. If a statute does not prescribe the time limit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 15 pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant."
17 At this stage, I may refer to a recent decision of the .
Three-Judge Bench of the Hon'ble Supreme Court in Brahampal vs. National Insurance Co., (2021) 6 SCC 512, wherein it has been held that undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of "sufficient cause". Although there exists no straitjacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, the Court shall refrain from exercising its discretionary power. It was further held that what colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 16 does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to .
condone the delay. It would be apt to reproduce the relevant observations as contained in paras 16 to 22, which read as under:-
18. At this juncture, we need to interpret the term "sufficient cause" as a condition precedent for the granting of the discretionary relief of allowing the appeal beyond the statutory limit of ninety days. Although this Court has held that provisions of the Limitation Act, 1963 does not apply while deciding claims under the Motor Vehicles Act, but it is relevant to note that even while interpreting "sufficient cause" under the Limitation Act Courts have taken a liberal interpretation. This Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs, (2008) 8 SCC 321, observed that:
"13....The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant." (emphasis supplied) ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 17
17. The aforesaid view was reiterated in the case of Balwant Singh (Dead) v. Jagdish Singh, (2010) 8 SCC 685, wherein this Court held that:
"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must .
squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." (emphasis supplied)
18. The Court in the abovementioned cases, highlighted upon the importance introducing the concept of "reasonableness" while giving the clause "sufficient cause" a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 18 against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party's inaction and negligence, the Courts have to take a strict approach so as to protect .
the substantial rights of the parties. 19. The aforesaid view was taken by this Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 wherein the Court held that:
"23. What needs to be emphasised is that even though a liberal and justiceoriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24. What colour the expression "sufficient cause"
would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." (emphasis supplied)
20. Therefore, the aforesaid provision being a beneficial legislation, must be given liberal interpretation to serve its object. Keeping in view the substantive rights of the parties, undue emphasis should not be given to ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 19 technicalities. In such cases delay in filing and refiling cannot be viewed strictly, as compared to commercial claims under the Arbitration and Conciliation Act, 1996 or the Commercial Courts Act, 2015.
21. In P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC .
445, wherein this Court while interpreting Section 34 of the Arbitration Act, held that the right to object to an award itself is substantively bound with the limitation period prescribed therein and the same cannot merely a procedural prescription. In effect the Court held that a complete petition, has to be filed within the time prescribed under Section 34 of the Arbitration Act and 'not thereafter'. The Court while coming to the aforesaid conclusion, reasoned as under:
r"36.1 First, the purpose of the Arbitration Act was to provide for a speedy dispute resolution process. The Statement of Objects and Reasons reveal that the legislative intent of enacting the Arbitration Act was to provide parties with an efficient alternative dispute resolution system which gives litigants an expedited resolution of disputes while reducing the burden on the courts. Article 34(3) reflects this intent when it defines the commencement and concluding period for challenging an award. This Court in Popular Construction case [Union of India v. Popular Construction Co., (2001) 8 SCC 470] highlighted the importance of the fixed periods under the Arbitration Act. We may also add that the finality is a fundamental principle enshrined under the Arbitration Act and a definitive time limit for challenging an award is necessary for ensuring finality. If Section 17 were to be applied, an award can be challenged even after 120 days. This would defeat the Arbitration Act's objective of speedy ::: Downloaded on - 14/03/2022 20:10:54 :::CIS 20 resolution of disputes. The finality of award would also be in a limbo as a party can challenge an award even after the 120 day period." (emphasis supplied) Coming back to the Motor Vehicles Act, the legislative .
intent is to provide appropriate compensation for the victims and to protect their substantive rights, in pursuit of the same, the interpretation should not be as strict as commercial claims as elucidated above.
22. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of "sufficient cause". Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.
18 It has been repeatedly held by the Hon'ble Supreme Court that a litigant cannot stand to benefit by resorting to delay.
In fact, he runs a serious risk and it is for this reason that judiciary is not respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
::: Downloaded on - 14/03/2022 20:10:54 :::CIS 2119 Bearing in mind the aforesaid exposition of law, I find that the applicant is guilty of deliberate inaction, lethargic, willful and deliberate negligence. No doubt, the applicant is aged about 70 years, however the explanation offered by him for not .
contacting his counsel is totally false.
20 The petitioner, as per his own showing, had undergone angiography at Batra Hospital New Delhi on 18.2.2000 and discharged on the very next date i.e. 19.2.2000.
That apart, the applicant does not have any serious ailment and was an outdoor patient at Tanda while medically examined on 11.5.2019 when he complained of discomfort in the chest.
21 As per the applicant, he remained at Tanda because the weather there suited to him and thereafter he returned to Shimla in July 2019. Even this explanation cannot be accepted as anyone residing in the Shimla town can take note of the fact that he/she enjoys one of the finest weather of the country from March to July and on the other hand, Tanda is extremely hot and humid.
22 Plea of the applicant is further falsified from the fact that he has not been able to rebut the contention of respondent No.1 that his daughter-in-law, i.e. wife of his son, is a government employee and posted at IGMC Shimla and even his grand- daughter is also studying in a day school at Shimla.
::: Downloaded on - 14/03/2022 20:10:54 :::CIS 2223 Therefore, this Court has no difficulty in concluding that the applications lacks bona fide, the applicant has been negligent all throughout and above all, the explanation given by him is concocted apart from being false. In such circumstances, .
obviously discretion cannot be exercised in favour of a party, who does not approach the court with clean hands.
24 In view of aforesaid discussions, I find no merit in these applications, which are accordingly dismissed, so also the main appeals and all other accompanying application(s).
r (Tarlok Singh Chauhan)
Judge
9.3.2022
(pankaj)
::: Downloaded on - 14/03/2022 20:10:54 :::CIS