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2010 DIGILAW 112 (JK)

Mohd. Shafi Malik v. FIL Industries Ltd.

2010-03-04

GH.HASNAIN MASSODI

body2010
1. The appellant seeks to assail an ex-parte judgment and decree dated 27.4.2006 passed by learned Ist. Addl. District Judge Srinagar in Civil Suit titled FIL Industries Ltd. v. Mohammad Shafi Malik after a delay of 1063 days. The appellant conscious that the appeal is time barred, has filed instant application for condonation of delay. The facts are as under: 2. The respondent, a body corporate, brought a suit against the appellant on 10.08.2002 for recovery of an amount of Rs.5,15,375/- with interest @ 18% accumulated thereon. The respondents case was that the appellant as salesman of the respondent company at its sale center Batamallo sold goods (fungicides, pesticides) of the company but failed to deposit the sale proceeds with the head office of the company at 7-Shiekh Bagh Sringar. The appellant, it was averred in the plaint, had pocketed an amount of Rs.5,15,375/- and alongwith interest of Rs,2,31,918/- @ 18 % p.a, accumulated thereon an amount of Rs. 7,47,293/- was recoverable from the appellant. The suit was registered and the appellant summoned. The appellant caused his appearance on 8.7.2002 but failed to file any written statement. The appellant instead filed an application under order 8 rule 14 CPC which after contest was dismissed on 21.07.2003. The appellant thereafter stayed away from the proceedings, leaving no option for the court but to proceed ex-parte against the appellant. The ex-parte proceedings were set aside at the instance of the appellant on 13.09.2003 subject Rs.300/- as costs. The appellant after filing written statement, again absented himself from the proceedings and was set ex-parte on 12.3.2004. The appellant did not turn up thereafter. The respondent, in the meantime, was asked to adduce evidence in ex-parte. The respondent examined his witnesses in ex-parte. Learned trial Judge on 27.4.2006 held the respondent to have proved its case and accordingly decreed the suit in ex-parte. 3. The delay of 1063 days in filing the appeal against the ex-parte judgment decreed dated 27.4.2006 is sought to be explained on the ground that the appellant because of his cardiac ailment could not contact with his lawyer and was not in a position to appear before the trial court. The appellant claims to have become aware of the ex-parte judgment / decree only when the appellant received notice in execution proceedings instituted on 29th of October 2007. The appellant claims to have become aware of the ex-parte judgment / decree only when the appellant received notice in execution proceedings instituted on 29th of October 2007. The appellant claims to have undergone "series of medical diagnostic treatments" and to have on receipt of notice in execution proceedings, telephonically instructed his counsel to file an appeal against the ex-parte judgment and decree. It is pleaded that the appellant could not personally approach his counsel to put his signatures on the memo of appeal and resultantly no steps were taken to file the appeal immediately after the receipt of the notice. It is averred that the appellant is the only male member of his family and the women folk being pardanisheen, could not attend the court or approach the counsel. The appellant has enclosed medical prescriptions and laboratory reports. 4. The application for condonation of delay is resisted inter-alia on the grounds that the averments made in the application are factually incorrect in as much as the appellant caused appearance before the trial court was set ex-parte and the ex-parte proceedings were set aside on payment of Rs.300/- as costs which the appellant never paid. It is insisted that the absence of the appellant before the trial court was voluntary, deliberate and intentional and the story of cardiac ailment sought to be set up, was false and bereft of any substance. The respondent has pointed out that the appellant absented himself from the proceedings from 12.03.2004 and the so called cardiac ailment on own showing of the appellant, surfaced in the year 2006 leaving the period from 2004 to 2006 unexplained. 5. Heard. There is no scope for any disagreement with the legal proposition that the rules of limitation must attract liberal interpretation. Cause otherwise genuine, must not be allowed to fail on technical grounds. It is settled law that when substantial justice is pitted against technical justice, the substantial justice must have its way and carry the day. The court while assessing and evaluating "sufficient cause" shown by a party to explain inability to approach the court within prescribed time must not scan the material as if it is dealing with a criminal case. The liberal attitude, however, is not to be stretched to a point where the rules of limitation are robbed of their meaning and reduced to a dead letter on the statute book. The liberal attitude, however, is not to be stretched to a point where the rules of limitation are robbed of their meaning and reduced to a dead letter on the statute book. The court has to be equally conscious of philosophy behind rules of limitation and the aims and objects that the law makers intended to achieve when the law of limitation was enacted. The object of the law of limitation is to ensure that a cause does not survive endlessly and push the parties to a realm of uncertainty. A party against whom a civil action is brought with reasonable dispatch may be in a position to organize its defense and project its case. If on the other hand the civil action is brought after inordinate delay, the party against whom such action is brought may be incapacitated to defend action because of obliteration of the evidence. In the said background imperatives of public policy demand that a time frame should be fixed for bringing a civil action before a court of law. So viewed, a party approaching the court after prescribed time, is required to convince the court that such party was prevented by sufficient cause from approaching the court within the prescribed time. The sufficient cause shown, if not to satisfy the standard of proof in a criminal proceedings, must nonetheless sound cogent and convincing. 6. Supreme Court in N. Balakrishanan v. M. Krishnanmurthy reported as AIR 1998 SC 3222 has commented an underlying object as under: "Law of Limitation fixes a life span for .. Legal remedy ... Time is precious and the 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 life span must be fixed for each remedy. Unending period for launching the remedy may lead of unending uncertainty and consequential anarchy. Law of Limitation is thus founded on public policy. It is enshrined in maxim, "Interests reipulicae up sit finis litium (It is for the general welfare that a period be put to litigant). Rules of Limitation are not meant to destroy the right of the parties. They are meant to seek that the parties do not resort to dilatory tactics but to seek their remedy promptly. It is enshrined in maxim, "Interests reipulicae up sit finis litium (It is for the general welfare that a period be put to litigant). Rules of Limitation are not meant to destroy the right of the parties. They are meant to seek that the parties do not resort to dilatory tactics but to seek their remedy promptly. The idea is that even legal remedy must be kept alive for legislatively fixed period of time" 7. In the present case there has been a delay of 1063 days or more three years in approaching the Ist. Appellate Court with the appeal. The delay is sought to be explained on the grounds of ailment of the petitioner. The court cannot afford to be oblivious to the fact that appellant was well aware of the litigation and even made a feeble attempt to contest the suit and that the appellant consciously stayed away from the pleadings conscious of the consequences of his absence. The grounds urged in the application for condonation of delay against the backdrop of the material placed on record, do not help the appellant to make out a sufficient cause for delay in filing the appeal. All that the material placed on the file makes out is that the appellant underwent few laboratory tests during 2006 to 2008. The appellant got his serum uric acid tested on 20.08.2006. Thereafter a few tests were got done on 14.3.2008, 24.9.2008 and 10.10.2008. The results, as is evident from the test report, were within normal parameters. The appellant consulted a physician on 3.10.2008 and 31.12.2008. These doctors nowhere indicated that the appellant was seriously ill, hospitalized or otherwise suffering from any serious ailment which must have prevented the appellant from contacting his counsel or approaching the trial court or the appellate court. There is no material on the file to indicate that the appellant was indisposed during 2004 to 2006 or even in 2007 or 2008. The medical checkup got done by the appellant, is of routine type and such checkups nowadays are done by one and all day in and day out and does not prevent the person going for lab tests from pursuing the normal activities. The medical checkup got done by the appellant, is of routine type and such checkups nowadays are done by one and all day in and day out and does not prevent the person going for lab tests from pursuing the normal activities. The ground urged in the application to seek condonation of delay of 1063 days in filing the appeal, having regard to the material placed on the file to lend support to the ground, does not inspire confidence or help the appellant to establish that the appellant was prevented by a sufficient cause within meaning of section 5 of the Limitation Act, from approaching the court within the prescribed time. 8. The condonation of delay application is without any merit and is dismissed. The fate of Civil Ist. Appeal can be no different. The appeal being time barred is also dismissed.