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2008 DIGILAW 402 (HP)

Hans Raj v. Dev Raj

2008-08-12

RAJIV SHARMA

body2008
JUDGMENT : RAJIV SHARMA, J. 1. This revision petition has been preferred against the order dated 11.4.2002 passed in C.M.A. (C.A. No. 45/2002) No. 148/1999 by the learned District Judge, Hamirpur. 2. The brief facts necessary for adjudication of this revision are that the petitioners/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a civil suit for declaration bearing No. 281/1987 in the Court of learned Sub Judge, Court No. 2, Hamirpur. The civil suit was dismissed by the learned trial Court on 18.12.1998. The certified copy of the judgment and decree was applied for on 23.12.1998. The plaintiffs preferred an appeal against the judgment and decree dated 18.12.1998 before the learned District Judge, Hamirpur. The same was barred by limitation. The plaintiffs had filed an application under Section 5 of the Indian Limitation Act for condonation of delay in filing the appeal. The respondents (hereinafter referred to as the defendants for convenience sake) filed reply to the application. The learned District Judge, Hamirpur dismissed the application on 11.4.2002. This revision has been preferred by the plaintiffs against the order dated 11.4.2002. 3. Mr. Ramakant Sharma has strenuously argued that the order dated 11.4.2002 is not sustainable in the eyes of law. Ms. Vidushi Sharma has supported the order dated 11.4.2002. 4. I have heard the learned counsel for the parties and perused the record carefully. 5. The judgment and decree is dated 18.12.1998. The certified copy of the judgment was applied for on 23.12.1998. The same was ready for delivery on 28.1.1999. The plaintiffs have obtained the copy of the judgment and decree on 2.2.1999. AW-1 Shri Hans Raj has deposed that the copy of the judgment and decree was obtained on 2.2.1999. It was supplied to Shri Rakesh Kumar, Clerk of Advocate Shri R.S. Jaggi on 12.2.1999. He enquired about the non-filing of the appeal on 10.4.1999. The Clerk of Advocate, Mr. R.S. Jaggi, Mr. Rakesh Kumar has appeared as AW-2. He has deposed that he omitted to inform the learned counsel about filing the appeal. According to him, the appeal was filed on 12.4.1999 since on 11.4.1999 was a holiday. AW-3, Mr. R.S. Jaggi, Advocate had stepped into witness box and has deposed that Shri Hoshiar Singh has taken the copy of the judgment and decree for consultation with his brother and it was returned to his Clerk in his absence. According to him, the appeal was filed on 12.4.1999 since on 11.4.1999 was a holiday. AW-3, Mr. R.S. Jaggi, Advocate had stepped into witness box and has deposed that Shri Hoshiar Singh has taken the copy of the judgment and decree for consultation with his brother and it was returned to his Clerk in his absence. He further deposed that Hans Raj came to see him in the month of April to know about the next date of the appeal. He informed Shri R.S. Jaggi that the copy of the judgment and decree was returned to his Clerk. Thereafter the appeal was filed. 6. RW-1 has deposed that the parties knew throughout that the appeal has been filed since the parties had attended another appeal on 3.4.1999. He has produced the certified copy of the order dated 3.4.1999 passed in that appeal vide Ex.R-1. 7. The learned District Judge has taken a very hyper-technical view of the matter while rejecting the application preferred under Section 5 of the Limitation Act. The delay in filing the appeal was 42 days. AW-1 has explained the manner in which the delay has occurred. He had deposed that Hoshiar Singh had taken the copy of the judgment and decree with him to discuss the matter with his brother and he had returned the copy on 12.2.1999. In the application it has come that the copy of the judgment and decree was returned to the Clerk, Mr. Rakesh Kumar on 13.2.1999. The learned District Judge has disbelieved AW-1 only on the ground that in his statement he has stated that the copies of the judgment and decree were returned to Shri Rakesh Kumar on 12.2.1999, but in the application 13.2.1999 has been mentioned as the date on which the copies were returned to the Munshi. This is a minor discrepancy. The version of AW-1 has been supported by AW-2, Mr. Rakesh Kumar and AW-3, Sh. R.S. Jaggi, Advocate. AW-2, Mr. Rakesh Kumar had deposed that he forgot to inform the learned Advocate about the receipt of the certified copy of the judgment and decree to enable him to file the appeal since the learned Advocate was out of station. Mr. R.S. Jaggi, AW-3 has also deposed that his Clerk has not brought to his notice that the certified copy of the judgment and decree has been received back. Mr. R.S. Jaggi, AW-3 has also deposed that his Clerk has not brought to his notice that the certified copy of the judgment and decree has been received back. The learned District Judge has given undue weightage to the statement of RW-1. RW-1 has only stated that the parties had attended the proceedings of another appeal on 3.4.1999. It is settled law by now that the Courts have to be liberal in condoning the delay. There was only a delay of 42 days, which has been explained by the plaintiffs satisfactorily. It was a fit case where the delay ought to have been condoned by the learned District Judge and the matter was required to be heard on merits. There is no reason why the party would not primarily file the appeal in the Court of law and if it is not done, it is at their peril. 8. Their Lordships of the Hon’ble Supreme Court in N. Balakrishanan vs. M. Krishnamurthy, AIR 1998 SC 3222 have held that the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. Their Lordships have further held that Rules of limitation are not meant to destroy the rights of the parties and court knows that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. Their Lordships have held as under: “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. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 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. 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 rights 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. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always delilberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act shold 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. The Administrator, Howrah Municipality, AIR 1972 SC 749 . 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 Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite 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. In this case explanation for the delay set up by the appellant was found satisfactory to the trial Court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Redressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial Court but on a condition that appellant shall pay a sum of Rupees Ten thousand to the respondent (or deposit it is this Court) within one month from this date.” 9. Their Lordships of the Hon’ble Supreme Court in Ram Nath Sao alias Ram Nath Sahu and Others v. Gobardhan Sao and Others, AIR 2002 SC 1201 have held that the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party. Their Lordships have held as under: “A learned single Judge of Ranchi Bench of the Patna High Court as it then existed, by order dated 18th November, 1998 directed for expunging name of appellant No. 2 from the record, making a note that appellants Nos. 5, 9 and 10 were already on the record as his heirs and legal representatives and impleading the daughter who was not on the record. So far the prayer for substitution of the heirs of appellants Nos. 3, 22 and 41 is concerned, the same was refused as it was held that no sufficient cause was shown for condonation of delay in filing the application to set aside abatement and setting aside abatement. So far the prayer for substitution of the heirs of appellants Nos. 3, 22 and 41 is concerned, the same was refused as it was held that no sufficient cause was shown for condonation of delay in filing the application to set aside abatement and setting aside abatement. Against the said order, the appellants preferred a Letters Patent Appeal before the Jharkhand High Court which was created by then, and the said appeal was dismissed on 11th January, 2001. Hence, this appeal by special leave.” 10. Accordingly, the civil revision is allowed and the order dated 11.4.2002 is set aside. The delay in filing the appeal is condoned. The learned District Judge, Hamirpur is directed to hear the appeal on its merits. The learned District Judge, Hamirpur is directed to conclude the hearing of appeal within a period of three months since the civil suit bearing No. 281 was filed in the year 1987. To avoid delay, the parties through their counsel are directed to appear before the learned District Judge, Hamirpur on 3rd September, 2008. No costs.