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2001 DIGILAW 285 (HP)

INDERJIT SINGH v. ONKAR SINGH

2001-10-11

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) is directed against the order dated 16.6.2000 passed by the learned District Judge, Kangra at Dharamshala whereby an application of the petitioners under Section 5 of the Limitation Act for condonation of delay in filing the appeal has been dismissed. 2. The material and undisputed facts are that the respondent instituted a suit for possession of a shop measuring 18x8 with a verandah situate in Jassur, Tehsil Nurpur, District Kangra for eviction of the petitioners on the grounds of sub-letting and arrears of rent. The learned Sub-Judge (II), Nurpur decreed the suit vide his judgment dated 13.5.1997. After more than one-and-a-half years, the petitioners preferred an appeal against the said judgment and decree along with an application under Section 5 of the Limitation Act (hereafter referred to as the Act) for condonation of delay in filing the appeal. The application under Section 5 of the Act was resisted by the respondent and the learned District Judge framed the following issues: "1. Whether there is sufficient cause to condone the delay in filing the appeal? OPA 2. Relief." 3. The petitioners led evidence. On the basis of the material on record, the learned District Judge decided issue No. 1 against the petitioners and accordingly dismissed the application for condonation of delay. Hence, the present revision petition. 4. I had heard the learned Counsel for the parties and have also gone through the material on record. 5. It was contended by the learned Counsel for the petitioners that the petitioners had engaged a counsel, handed over the papers to him and paid his fee to file the appeal. The Counsel so engaged did not do anything and continued to inform the petitioners of fictitious dates of hearing in the appeal which was never filed. When the petitioners learnt about the true state of affairs, the papers were taken back from the said counsel and the appeal was then filed along with an application for condonation of delay. On the strength of these facts, the learned Counsel submitted that the delay in filing the appeal is attributable entirely to the misconduct of the Advocate for which the petitioners should not suffer. On the strength of these facts, the learned Counsel submitted that the delay in filing the appeal is attributable entirely to the misconduct of the Advocate for which the petitioners should not suffer. It was, therefore, urged that there is sufficient cause to condone the delay and the Court below has wrongly held the contrary and the impugned order deserves to be set aside. 6. To substantiate his submissions, the learned Counsel for the petitioners had relied on Rafiq and another v. Munshilal and another (AIR 1981 SC 1400); Teju v. Bhadar and another (AIR 1987 HP 25) and Suraj Kund Temple and another v. Rama Kant and others (1989 (1) SLC 1). 7. On the other hand, the learned Counsel for the respondent had contended that the version regarding engaging a counsel to file an appeal in time, payment of fee to him and his giving fictitious dates of hearing etc. is a cooked up version. It was further contended that there is material variance in the contents of the application for condonation of delay and the statement of the petitioner and that the petitioners had been gaining time even in the execution petition to delay the delivery of possession on unfounded grounds and it was never their case that they had filed any appeal. It was further argued that there is in fact no cause what-so-ever to condone the delay, therefore, the Court below had rightly dismissed the application of the petitioners for condonation of delay and the impugned order does not call for any interference. To support his contention the learned Counsel has relied on P.K. Ramachandran v. State of Kerala and another, (1997) 7 SCC 556; N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 and Balak Ram and others v. Chet Ram and others, 2000 (2) Sim. L.C. 167. 8. In view of the provisions of Section 5 of the Limitation Act, delay in filing an appeal can be condoned if the appellant shows sufficient cause for such condonation. The expression sufficient cause has not been defined in the Act and thus, in the ordinary course, it must mean a cause which is beyond the control of the party seeking to invoke the aid of Section 5 of the Limitation Act. The expression sufficient cause has not been defined in the Act and thus, in the ordinary course, it must mean a cause which is beyond the control of the party seeking to invoke the aid of Section 5 of the Limitation Act. In other words, to constitute sufficient cause it must be established that some event(s) or circumstance(s) prevented the party seeking condonation of delay from filing the appeal within the prescribed period of limitation. 9. In N. Balakrishnans case (supra), the Honble Supreme Court has held that the rules of limitation are not meant to destroy the rights of the 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered and that the refusal to condone the delay would result in foreclosing the suit or from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. Therefore, the expression sufficient cause under Section 5 of the Limitation Act must be construed liberally so as to advance substantial justice. If the explanation offered for condonation of delay does not smack of mala fides or is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. However, it has further been held that time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. 10. In P.K. Ramachandran’s case (supra), it has been held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. Similar view has been taken by the Honble Supreme Court in the case Lachhman Dass Arora v. Ganeshi Lai and others, (1999) 8 SCC 532. 11. Similar view has been taken by the Honble Supreme Court in the case Lachhman Dass Arora v. Ganeshi Lai and others, (1999) 8 SCC 532. 11. In Balak Ram and others v. Chet Ram and others, 2000 (2) Sim. L.C. 167 (supra), this Court held as under : "10. The crux of the aforesaid is that once the Court accepts the explanation for the delay as given by the concerned party, it must condone the delay. However, the sufficiency of the explanation given by a party for condonation of delay will depend on the facts and circumstances of each case. Decidedly, the word "sufficient cause" has to be construed liberally but the extent of the liberal construction should not be such that it may totally ignore the public policy on which the law of limitation is founded and thereby defeat the very purpose of the law of limitation. Thus, the Court must at least be satisfied that the party has shown the existence of certain facts and circumstances which constitute a cause which can liberally be held to be the sufficient cause for condoning the delay" 12. It is thus clear that the expression "sufficient cause" must be construed liberally so as to advance the cause of justice on merits but at the same time it has to be borne in mind that "liberal construction" should not be such that it may totally ignore the public policy on which the law of limitation is founded and thereby defeat the very purpose of the law of limitation. If follows that a truthful cause which may warrant condonation of delay, has to be shown to the satisfaction of the Court before the delay in filing any application or appeal is condoned under Section 5 of the Limitation Act. 13. In the cases relied on by the learned Counsel for the petitioners, the delay had occurred due to the deliberate or bona fide lapses on the part of the Advocates respectively engaged by the parties seeking condonation of delay and the ratio in the said cases is that a party which has done everything on its part to pursue its cause through a counsel, should not suffer for any deliberate or bona fide lapse on the part of its counsel. There is no dispute with this proposition but it will apply only when it is shown that the lapse causing delay was due to the failure of the counsel to discharge his obligation as such counsel. 14. In the case in hand, the case put forth by the petitioners for condonation of delay appears neither truthful nor bona fide. It is averred in the application for condonation of delay that the petitioners obtained copies of the judgment and decree in time, engaged counsel at Dharamshala, paid Rs. 5,500 as counsel fee, but the counsel used to give false dates to them and asked them not to visit Dharamshala and this led them to believe that the appeal proceedings were going on. It is further averred that thereafter petitioner Jasjit Singh had gone to Amritsar for eye treatment and remained there for a considerable period and his elder brother (the other petitioner) fell sick and remained bedridden. Thereafter when they went to Dharamshala they came to know that the appeal was not filed by their Counsel who returned all the documents to them. Then, the petitioners again obtained the copies of the judgment and decree and filed the appeal. These averments are supported by affidavit of Jasjit Singh, petitioner. He appeared as AW-1 to support these averments wherein he has stated that the case was decided by the trial Court in the month of May 1997. Then he took the case file from the Advocate who conducted the case for the petitioners before the trial Court and went to Dharamshala in the month of September 1997 where he contacted Mr. A.S. Rana, Advocate and handed over the file to him along with fee of Rs. 5,000. In October 1997 he came to Dharamshala and met the said Advocate in the Court premises. He has further stated that in September 1997 he met with an accident and his eye was operated upon thrice and then he engaged Mr. A.S. Pathania, Advocate from Nurpur who filed the application and the appeal on behalf of the petitioners. He has nowhere stated that after having come to know that the Advocate earlier engaged by him, had not filed the appeal, he had again to apply for copies of the judgment and decree. Thus, the averments in the application that after taking papers from Mr. He has nowhere stated that after having come to know that the Advocate earlier engaged by him, had not filed the appeal, he had again to apply for copies of the judgment and decree. Thus, the averments in the application that after taking papers from Mr. A.S. Rana, Advocate, the petitioners had to again apply for the copies of judgment and decree to prefer appeal, are false. This conclusion is further strengthened by the fact that along with the appeal filed by the petitioners before the Court below, the copies of the judgment and decree having been delivered to them on 13.10.1997 have been filed, and had not been obtained after the alleged return of their papers by Mr. A.S. Rana, Advocate. Since there copies had been obtained by the petitioners on 13.10.1997, therefore, it is also a blatant lie that petitioner Jasjit Singh came to Dharamshala in September, 1997 and handed over the papers to Mr. A.S. Rana, Advocate for filing the appeal. In fact, at that time the petitioners had not obtained the copies of the judgment and decree sought to be appealed against. Thus, it is apparently a coined story that he had instructed Mr. A.S. Rana, Advocate in September, 1997 to file the appeal. 15. There is variance in the averments in the application and the statement of AW-1 Jasjit Singh even about the amount of fee allegedly paid to Mr. A.S. Rana, Advocate. The version regarding engagement of Mr. A.S. Rana to file the appeal is further belied by the admission of Jasjit Singh (AW-1) himself when he states that he never met Mr. A.S. Rana, Advocate. If he had never met him, he could never instruct him to file the appeal. The averment in the application that-Jasjit Singh had to remain in Amritsar for treatment of his eyes for a considerable time, is also false in view of his own admission as AW-1 that for such treatment he remained in the hospital only for three days, that too some-time in the month of September 1997, whereas the copies of the judgment and decree were obtained by the petitioner in the month of October 1997. He has not stated anything about the alleged illness of the co-petitioner. 16. The appeal and the application for condonation of delay have admittedly been filed by the petitioners on 13.5.1999. He has not stated anything about the alleged illness of the co-petitioner. 16. The appeal and the application for condonation of delay have admittedly been filed by the petitioners on 13.5.1999. However, the respondent had filed application for execution of the decree against the petitioners some-time in the beginning of the year 1998 and the petitioners through their counsel had put in appearance before the executing Court on 24.2.1998 and continuously thereafter had been seeking time to file objections against the execution petition till 6.1.1999 without ever disclosing that they had filed any appeal or they intended to file any appeal against the decree. It cannot be lost sight of that the decree against the petitioners is for their eviction from a shop. In view of the false averments made in the application and the aforesaid act and conduct of the petitioners, it is evident that they are delaying the execution of the decree with mala fide intention. Thus, the cause pressed for condonation of delay by the petitioners is untrue and mala fide. In fact, there is no cause what-so-ever to condone the delay in filing the appeal. 17. In view of the above discussion and conclusions the learned District Judge has rightly refused to condone the delay in filing the appeal. Therefore, the impugned order does not call for any interference. 18. As a result, this revision petition merits dismissal and is accordingly dismissed with costs which are quantified at Rs. 1,000. Revision dismissed.