Allahabad High Court
Kishan Lal vs State Of U.P. on 26 August, 2019
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 30 Case :- FIRST APPEAL DEFECTIVE No. - 86 of 1983 Appellant :- Kishan Lal Respondent :- State Of U.P. Counsel for Appellant :- Rastrapati Khare,R.D. Tiwari Hon'ble Vivek Kumar Birla,J.
Re: Civil Misc. Delay Condonation Application No. 39937 of 1997 Re: Civil Misc. Restoration Application No. 39936 of 1997 Heard Sri S.K. Mishra, learned counsel for the applicant and Sri Shivam Yadav, learned counsel for the NOIDA.
On 23.7.2019 following order was passed:-
"Re: Civil Misc. Restoration Application Heard Sri S.K. Mishra, learned counsel for the applicant.
The appeal was dismissed on the ground of deficiency in court fees in the year 1989. The appellant during his lifetime never challenged the aforesaid order and the same was permitted to become final. The appellant stated to have died on 14.12.1983.
Subsequently, the legal heirs came forward to file this restoration application and simultaneously, filed substitution application as the original appellant had already died. This restoration application was filed after a gap of 14 years. The application was filed by some other counsel and now Sri S.K. Mishra is pressing the said application.
Under such circumstances, when this transpired during the course of argument, Sri S.K. Mishra, learned counsel for the applicant prayed for time to support his argument with some judgments of the Hon'ble Apex Court or of this Court on this issue as to how this restoration application can be allowed filed by the legal heirs wherein the appellant during his lifetime has not come forward to challenge the same and permitted the judgment of dismissal become final.
On his request, list after four weeks."
Today learned counsel for the petitioner in the light of the aforesaid order has placed reliance on the order passed by me in First Appeal No. 539 of 1982 Risal Singh and others vs. Sate of U.P. and claimed that in that case there was a delay of thirteen years which was condoned by this Court and substitution application was allowed. He submits that under such circumstances the present applications are also liable to be allowed.
Sri Shivam Yadav, learned counsel for the NOIDA submitted that such huge delay cannot be condoned. He submits that cause shown is not sufficient.
I have considered the rival submissions and perused the record.
I had the occasion to discuss the law of limitation in my order/judgment passed today itself in First Appeal Defective No. 1040 of 2004 Raghubeer and Another vs State of U.P. and others. Paragraph nos. 7, 8 and 9 whereof are quoted as under:-
"7. Learned counsel for the respondent has placed reliance on the judgment of this Court in First Appeal Defective No. 126 of 2016 Hari Singh (deceased) and 11 others vs. State of U.P. through Collector 2017 (1) ADJ 194 whereby the application for leave to appeal and application for condonation of delay in such matters was refused by this Court.Paragraphs 13, 14, 15, 16, 17 and 28 thereof are quoted as under:-
13. The ''law of limitation' is enshrined in the legal maxim ''interest reipublicae up sit finis litium' which means that it is for the general welfare that a period be put to litigation. Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
14. Meaning of the word ''sufficient' is ''adequate' or ''enough', inasmuch as may be necessary to answer the purpose intended. The words ''sufficient cause' mean that the parties should not have acted in a negligent manner or there was a want of bona fide on his part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court cannot allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. The expression "sufficient cause" should normally be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned. Whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation.
15. Where a case has been presented as in the present appeals; in the court beyond limitation, the applicant has to explain the court as to what was the ''sufficient cause' which means "adequate and enough reason" which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. In such circumstances, no court could be justified in condoning an inordinate delay by imposing any condition whatsoever.
"16. In the case of Basawaraj and another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, Hon'ble Supreme Court considered the order of the High Court and rejected the application for condonation of delay of five and a half years in filing an appeal under Section 54 of the Act before the High Court on the ground of illness of one of the appellant and after referring to the judgments in the case of Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v. Veena @ Bharti (2011) 3 SCC 545, and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157, Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, Madanlal v. Shyamlal, (2002) (1) SCC 535; and Ram Nath Sao v. Gobardhan Sao & Ors., (2002) 3 SCC 195, Popat and Kotecha Property v. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh & Ors., (1973) 2 SCC 705, Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, upheld the judgment of the High Court and dismissed the Civil Appeal observing in paras-14 & 15 as under:
"14. In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
17. In the case of Brijesh Kumar and others Vs. State of Haryana and others, 2014 (11) SCC 351, a claimant/ tenure holder filed S.L.P. challenging the order of the High Court refusing to condone the delay of ten years and two months and 29 days in filing the appeal by the claimant under Section 54 of the Act in spite of the fact that other persons who had preferred appeals in time had been given a higher compensation. Hon'ble Supreme Court referred to various judgments and held as under:
"11. It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.
15. In the instant case, after considering the facts and circumstances and the reasons for inordinate delay of 10 years 2 months and 29 days, the High Court did not find sufficient grounds to condone the delay.
16. In view of the facts of the case and the above-cited judgments, we do not find any fault with the impugned judgment (Brijesh Kumar v. State of Haryana, RFA No.5793 of 2012, decided on 22.11.2013). The petitions lack merit and are accordingly dismissed."
28. In the case of Simrat Kaur and others Vs. State of Haryana and others, (2015) 13 SCC 563 (paras-10, 11 & 12), Hon'ble Supreme Court referred to its judgments in the case of Mewa Ram Vs. State of Haryana, (1986) 4 SCC 151, State of Nagaland vs Lipokao and others, (2005) 3 SCC 752, D. Gopnathan Pillai Vs. State of Kerla, (2007) 2 SCC 322 and observed as under:
"Hon'ble the Supreme Court opined that when mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic ground".
(Emphasis supplied)
8. He has further placed reliance on First Appeal Defective No. 172 of 2015 Fundan and 2 others vs. State of U.P. and 2 others and decided on 13.12.2016.
9. I have perused the affidavit filed in support of the delay condonation application. Main ground is that although the appellant had directed the counsel to file appeal who filed appeals on behalf of other claimants but did not file his appeal. Admittedly, the appellant did not take care even to contact his counsel for ten years whether, as alleged, his appeal was filed or not. This bald assertion does not provide sufficient cause in the light of above noted judgments. I do not find any good ground to condone the delay. Further, the record reflects that appeal was dismissed for want of prosecution twice on earlier occasion also."
I find that in the present case the appeal was dismissed on the ground of deficiency of Court fees vide order dated 22.9.1983 whereas the appellant was alive till 14.12.1983 and his legal heir filed substitution application and restoration application after a gap of fourteen years and deficiency of Court fees was sought to be made good after a long period of 35 years in 2018.
It would also be relevant to note the order dated 22.9.1983 passed by the Hon'ble Division Bench by which the appeal was dismissed for deficiency of Court fees, which is quoted as under:-
"By a peremptory order dated 16.8.1983 the appellant had been given one month's time to make good the deficiency. He has not done so. The Memo of appeal is, therefore, rejected for want of court fee."
The present case, therefore, stand on a different footing as order dated 8.7.2019 relied on by learned counsel for the applicant was passed on a regular appeal which was dismissed in default and the same was not a defective appeal whereas this appeal was dismissed on the ground of deficiency of Court fees after providing one more opportunity to the appellant by peremptory order dated 16.8.1983 to make good the deficiency.
The applicant, therefore, cannot be permitted to take benefit of their own laches and negligence, particularly, where the defective appeal was dismissed on the ground of deficiency in Court fees and the original appellant was alive but did not take steps to get the order recalled and make good the deficiency in Court fees. Clearly, it was not a competent appeal in the eye of law in absence of sufficiency of Court fees which was dismissed for the said reason. Recalling the order dated 22.9.1983 after 36 years would be stretching and bending the law of limitation too much and too far and would be showing misplaced sympathy to the applicants.
It may also be noted that appeal was filed by one counsel. It was dismissed for deficiency of Court fees on 22.9.1983. Another counsel filed the Restoration Application with the Delay Condonation Application in 1997. Thereafter, another counsel was engaged who filed the substitution application. Now the fourth counsel i.e. the present counsel filed the impleadment application for impleading the NOIDA and filed Court fees vide application no. 3 of 2018 on 22.10.2018. It may also be noted that the Court fees of Rs. 5,427.50/- was calculated and payable in the year 1983 itself. Clearly, the applicant never cared to contact the counsel for about 14 years to enquire about the appeal and sought to make good deficiency of Court fees after 35 years.
At this stage, Sri Shivam Yadav, learned counsel appearing for the NOIDA-authority stated that in the appeal pursuant to the reference court judgment amount was also paid and accepted by the claimants.
At this stage, learned counsel for the applicant placed reliance on judgment of Hon'ble Apex Court in State of Bihar vs Kameshwar Prasad Singh 2000 Law Suit (SC) 830, to submit that to do substantial justice to parties delay should be condoned. Suffice to note that facts of that case are quite distinguishable. In that case State had filed the delayed appeal before Hon'ble Apex Court, wherein question was of grant of benefit of order to other person in a service matter. Further, the delay was of 679 days only, whereas in the present case delay runs into year as noted above. Further, more recent judgment have been discussed above covering appeals filed under Section 54 of LA Act also. Hence, aforesaid case is clearly not applicable in the present case.
For the discussion made hereinabove the delay condonation application is rejected and consequently, the restoration application stands rejected.
Order Date :- 26.8.2019 Aditya