Himachal Pradesh High Court
Ajay Dabra vs Sunder Singh & Another on 17 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP(M) No. 75 of 2018 a/w
CMP(M) No.76 of 2018
Decided on: 17.12.2018
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CMP(M) No.75 of 2018
Ajay Dabra ...Applicant/Appellant
Versus
Sunder Singh & another ...Respondents
CMP(M) No.76 of 2018
Ajay Dabra ...Applicant/Appellant
Versus
Pyare Ram & others ...Respondents
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No
For the Appellant(s)/ Mr. Sunil Mohan Goel, Advocate in
Applicant(s): both the matters.
For the respondents: Mr. Suneet Goel, Advocate, for
respondent No. 1 in CMP(M) No.75 of
2018.
Mr. Mukul Sood, Advocate, for
respondent No. 1 in CMP(M) No.76 of
2018.
Tarlok Singh Chauhan, Judge (Oral)
By medium of both these applications, the applicant/ appellant has sought condonation of 254 days delay that has crept up in filing of the appeal(s).
2. It was averred that the learned Trial Court dismissed the suits filed by the plaintiff(s) vide its judgment dated 30.12.2016 and ::: Downloaded on - 20/12/2018 22:55:57 :::HCHP 2 copy whereof was promptly applied on 2.1.2017 and was ready for delivery on 18.1.2017, however, the same was received only on 25.2.2017. The applicant thereafter consulted with his Counsel, .
whereafter the Counsel advised him to file an appeal before this Court. The applicant thereafter arranged for court fee and since the second suit filed by the plaintiff had also been dismissed on the same ground, he had to arrange for the court fee in that case also and eventually could file the appeals only in December 2017.
3. Respondent No. 1 contested the application(s) by filing reply(s), wherein it is averred that the plaintiff is financially very sound and he is businessman and a hotelier and therefore, does not lie in his mouth to contain that he did not have sufficient means and he had to arrange for the court fee, which took him almost one year.
4. The applicant has filed rejoinder to the reply filed in CMP(M) No.75 of 2018, reiterating the contents of the application while denying the averments as contained in the reply. No rejoinder has been filed in CMP(M) No.76 of 2018.
5. I have heard learned counsel for the parties and have gone through the records of the case.
6. It is more than settled that in matters of the instant kind the Courts normally are required to adopt liberal approach specially while dealing with the application for condonation of delay as ordinarily a litigant does not stand to benefit by lodging an appeal late and refusal to condone delay can result in an meritorious matter ::: Downloaded on - 20/12/2018 22:55:57 :::HCHP 3 being thrown out at the very threshold and the cause of justice being defeated. It is clearly settled that the approach in such matter should not be a pedantic but the doctrine that is to be kept in mind is that .
the matter has to be dealt in a rational commonsense, pragmatic manner and cause of substantial justice deserves to be preferred over the technical consideration.
7. However, at the same time, the Court is also required to see whether there are lack of bonafides imputable to a party seeking condonation of delay. It has also to take into consideration the conduct, behaviour and attitude of a party relating to its inaction or negligence while approaching the Court. It has further to be ensured that the concept of liberal approach has to be encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play because there is increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in an non-challant manner, which requires to be curbed, of course, within the legal parameters. This legal position is succinctly expounded in the judgment of the Hon'ble Supreme Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy 2013 (12) SCC 649, wherein while interpreting the provisions of Section 5 of the Limitation Act regarding condonation of delay the principles applicable thereto were summarised as follows:-
::: Downloaded on - 20/12/2018 22:55:57 :::HCHP 4(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.
(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 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 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 ::: Downloaded on - 20/12/2018 22:55:57 :::HCHP 5 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.
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(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.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone r delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.
8. In view of the aforesaid exposition of law, it is crystal clear that in seeking condonation of delay in filing of the appeal, it is incumbent on the party seeking such condonation to show sufficient ::: Downloaded on - 20/12/2018 22:55:57 :::HCHP 6 cause, which prevented the appellant from filing the appeal within the statutory period.
9. Bearing in mind the aforesaid exposition of law, it would .
be noticed that only explanation offered by the applicant/appellant for not filing the appeals within the prescribed period of limitation is that he could not arrange for the court fee for a considerable long time and as when when, the same was arranged, he immediately filed the appeals. This explanation to say the least appears to be a cock and bull story for more than one reasons. Firstly, it has come on record that the plaintiff is an affluent businessman and hotelier.
That apart, in case, the appellant/applicant was really serious in pursuing the appeals, he could have conveniently filed the same alongwith an application under Section 149, CPC seeking time for making up deficiency of court fee.
10. Thus, in this background, this Court has no hesitation to conclude that the application not only lacks bonafide but it is based on the false averments. There has been gross inaction or negligence on the part of the applicant in filing the appeal within the prescribed period of limitation and the explanation being offered is concocted.
The conduct and attitude of the applicant only reflects upon his inaction, negligence and lackadaisical attitude.
12. Therefore, the applicant has failed to carve out sufficient cause for condonation of delay, accordingly the application is dismissed, leaving the parties to bear their own costs.
::: Downloaded on - 20/12/2018 22:55:57 :::HCHP 713. Since, the application(s) for condonation of delay has been dismissed, both the Regular Second Appeals are also dismissed accordingly.
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(Tarlok Singh Chauhan), Judge.
December 17, 2018
(mamta)
r to
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