Himachal Pradesh High Court
Babu Ram vs Panna Lal Jaiswal And Other on 5 July, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 5th DAY OF JULY, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 94 OF 2022
Between:-
BABU RAM, S/O SH. SANT RAM
AGED 60 YEARS, R/O VILLAGE
GANYANA NALI, PARGANA
GIRIWAR, TEHSIL PACHHAD,
DISTRICT SIRMAUR, H.P.
...PETITIONER
(BY SH. ANAND SHARMA,
SENIOR ADVOCATE WITH SH.
KARAN SHARMA, ADVOCATE)
AND
KHAJAN SINGH, S/O SH. BARDU
RAM, R/O VILLAGE RISTER
PANWA, PARAGANA GIRIWAR,
TEHSIL PACHHAD, DISTRICT
SIRMAUR, H.P.
...RESPONDENT
(SH. NARESH K. TOMAR,
ADVOCATE.)
RESERVED ON:-01.07.2022
This petition coming on for orders this day, the Court passed the
following:-
ORDER
This petition under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure is ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 2 directed against the impugned order dated 07.10.2021, whereby the application moved by the petitioner for condonation of delay .
in filing of the appeal has been dismissed.
2. Plaintiff is the appellant whose suit for declaration of permanent prohibitory injunction came to be dismissed by the learned Trial Court.
3. Aggrieved by the dismissal of the suit, the plaintiff/petitioner preferred an appeal alongwith an application for condonation of delay. However, the application alone was taken up for consideration and was dismissed by the learned first Appellate Court, constraining the petitioner to file the instant petition.
4. Learned counsel for the respondent has raised preliminary objections regarding the maintainability of the petition by placing strong reliance on the judgment of the Hon'ble Supreme Court rendered by three Hon'ble Judges in Shyam Sundar Sarma vs. Panna Lal Jaiswal and other (2005) 1 SCC 436, to contend that the dismissal of an appeal for default on the ground that it was barred by limitation cannot be treated at par with the non-filing or withdrawal of an appeal, as the appeal is dismissed on the refusal to condone the delay is nevertheless a decision in the appeal. It is further contended that merely there is no merger of the decree of the Trial Court in that ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 3 of the Appellate Court in a case of this nature does not imply as the said explanation would not be applicable.
.
5. It is apt to reproduce paras 10 and 14 to 16 of the judgment which reads as under:-
10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi vs. Mathew (1987 (2) KLT 848). Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against.
Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.
14. It was sought to be argued on behalf of the appellant that the above decisions were distinguishable in view of the fact that in those cases, the appeals against the decrees were filed first, followed by the petitions under Order IX Rule 13 of the Code, whereas in the present case the petition under Order IX Rule 13 of the Code was filed first and only during its pendency, an appeal against the ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 4 decree was filed, with an application for condoning the delay in filing it. In our view, this would not make any .
difference to the principle enunciated by this Court in Rani Choudhury's case (supra). Moreover, on the day the trial court was called upon to consider and dispose of the petition under Order IX Rule 13 of the Code, an appeal, though belated, had been filed against the decree by the appellant and the same had been dismissed as barred by limitation and had not been withdrawn. It is not possible to accept the argument that the application of the explanation should be confined to cases where an appeal had already been filed against the ex parte decree and it should be held not to apply to cases where an appeal is subsequently filed. The acceptance of such an argument, in our view, would tend to defeat the legislative scheme as noticed in Rani Choudhury's case (supra). In the light of the object sought to be achieved by the introduction of the explanation to Order IX Rule 13, such an argument cannot also be accepted.
15. We are not impressed by the argument of learned counsel for the appellant that the decision in Rani Choudhury's case (supra) requires reconsideration. On going through the said decision in the light of the objects and reasons for the introduction of the explanation to Order IX Rule 13 and the concept of an appeal as indicated by the Privy Council and this Court in the decisions already cited, the argument that an appeal which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, should be treated on a par with the non-filing of an appeal or the withdrawal of an appeal, cannot be accepted. The argument that since there is no merger of the decree of the trial court in that of the appellate court in a case of this nature and ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 5 consequently the explanation should not be applied, cannot also be accepted in the context of what this Court .
has earlier stated and what we have noticed above.
16. Thus, in the case on hand we find that the trial court, the appellate court and the High Court have rightly held that the petition under Order IX Rule 13 of the Code would not lie in view of the filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default, since a dismissal for default or on the ground of it being barred by limitation cannot be equated with a withdrawal of the appeal. Consequently, the decision of the High Court is affirmed and this appeal is dismissed. In the circumstances of the case we make no order as to costs.
6. I am afraid that I cannot accede to the contention raised by the petitioner, as it would be noticed that the petitioner had filed an appeal alongwith an application for condonation of delay, however, the learned first Appellate Court for some strange reason did not take up the appeal alongwith the application and only took up the application for condonation of delay separately and proceeded to dismiss the same vide impugned order. Even though this procedure could be questionable but nonetheless the fact remains that no decree was prepared by the Court below so as to furnish a cause of action to the petitioner to file a second appeal.
7. Now, adverting to the merits of the case, it is not in dispute that the appeal, as filed before the learned first Appellate ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 6 Court, was barred by more than eight and half years and the only explanation offered by the petitioner seeking condonation of .
delay in the application, is contained in paras 3 to 6, which read as under:-
3. That soon after the judgment pronounced by the learned Trial Court, the applicant contacted his counsel Sh. Hitender Chaudhary Advocate who advised the applicant that the applicant will have to prefer an appeal against the said judgment and the appeal may take long time in its final disposal, accordingly Ld. Counsel of the applicant prepared the documents and appearance of applicant will be required, he will contact/call the applicant.
4. That in the month of September, 2018 the applicant came to know that unfortunately Sh. Hitender Chaudhary, Advocate, got expired and then applicant tried to verify the fate of his case and only then applicant came to know that there was no appeal filed on his behalf before the Ld. Appellate Court.
5. That in the month of September, 2018, applicant applied for certified copy of judgment/order and judgment passed by the Trial Court and after getting the certified copy on 13.10.2018 and after arrange the money and contacted the present counsel and file the present appeal.
6. That the applicant has sufficient cause to satisfy the Ld. Court for condonation delay and the delay on the part of applicant is neither intentional nor deliberate but due to the reasons sated above.
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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 7 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 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 Mst. 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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 8 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.
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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 9 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 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, ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 10 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 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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 11 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 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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 12 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 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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 13 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 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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 14 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.
(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.::: Downloaded on - 05/07/2022 20:04:05 :::CIS 15
(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.
(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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 16 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 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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 17 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 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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 18 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)
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 ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 19 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 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.
::: Downloaded on - 05/07/2022 20:04:05 :::CIS 20The 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 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.
::: Downloaded on - 05/07/2022 20:04:05 :::CIS 2121. 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:
"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 resolution of disputes. The finality of award would also be in a limbo as a party can ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 22 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 - 05/07/2022 20:04:05 :::CIS 2319. Bearing in mind the aforesaid exposition of law, I find that the petitioner is guilty of deliberate inaction, has been .
lethargic and exhibited willful and deliberate negligence. One could understand that on the assurance of the Advocate, a litigant could wait for one year or two years or at best even for five years to know the outcome of the appeal, but it is absolutely unimaginable that a litigant would wait for more than eight and half years and not at all enquire about the fate of his appeal.
20. That apart, according to the petitioner, he came to know about the death of his Advocate in the month of September, 2020. However, his contention cannot be believed as he himself attached the certified copy of the order of the learned Trial Court, which he applied on 28.09.2018 and received on 16.10.2018. Though the petitioner would contend that his lawyer had not filed the appeal and this fact came to his notice on September, 2018 but he maintained complete silence about these documents, which were given to his Counsel for filing of the appeal. Moreover, as stated above, the application filed by the applicant for condonation of delay is otherwise conspicuously silent as to why he did not choose to contact his Advocate for over a period of eight years.
21. In such circumstances, this Court has no difficulty in concluding that the application filed by the petitioner for ::: Downloaded on - 05/07/2022 20:04:05 :::CIS 24 condonation of the delay lacked bonafide and the petitioner had been negligent all through and above all the explanation offered .
by him was concocted and false.
22. In such circumstances, obviously the discretion could not have been exercised in favour of the petitioner, who had not approached the Court with clean hand and has therefore rightly been declined by the learned first Appellate Court.
23. In view of the aforesaid discussions and for the reasons stated above, I find no merit in this petition and the same is accordingly dismissed.
(Tarlok Singh Chauhan) Judge 5th July, 2022 (sanjeev) ::: Downloaded on - 05/07/2022 20:04:05 :::CIS