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2010 DIGILAW 2119 (PNJ)

Dinesh Kumar v. Chanderkala

2010-07-26

MEHINDER SINGH SULLAR

body2010
JUDGMENT MEHINDER SINGH SULLAR, J. (Oral) - CM Nos.13788-13789-C of 2009 The matrix of the facts, relevant for disposal of present applications, for condonation of delay is that the applicant-appellant filed the main appeal in this Court on 8.3.2006 presumably within limitation. According to the Registry, as there was a delay of two days in filing the appeal, therefore, the same was returned with the following objections:- 1) How the RSA is within limitation; 2) Substantial law point should be mentioned in GOA; 3) Fair true copy of that should be filed. 2. Having removed the objections, the applicant-appellant re-filed the appeal on 8.12.2009 with Ist application for condoning the delay of 2 days in filing the appeal and 2nd application for condonation of delay of 1371 days in re-filing the appeal, invoking the provisions of section 5 of the Limitation Act and section 151 CPC. 3. Concisely, the case set up by the applicant in his application for condonation of delay of 2 days in filing the appeal was that after the decision of first appellate Court, he collected the documents and other record from the counsel in the trial Court and due to financial crises, he could not manage to purchase the Court fees for filing the appeal and thus the delay of two days occurred in filing the appeal. 4. As regards the delay of 1371 days in re-filing the appeal, it was claimed by learned counsel for the applicant that his earlier Clerk Mauj Deen has collected the paper book of the appeal after the objections and put the same in the brief of admitted case of RSA No.4173 of 2002 titled as “Chief Administrator Haryana Agricultural Marketing Board v. Zile Singh” by mistake and kept in the bundle of admitted cases. The earlier Clerk was stated to have left his office in the month of July, 2006. Thereafter, he (Mr. Dinesh Kumar Jangra, Advocate) has changed his office and client could not contact him. Now, the execution has been filed by the respondent thereby his client enquired about his appeal, he (Mr. Dinesh Kumar Jangra, Advocate) made efforts to search out the same and contacted Mauj Deen Clerk. After making hard efforts, he was able to find out the paper book of the instant appeal. Now, the execution has been filed by the respondent thereby his client enquired about his appeal, he (Mr. Dinesh Kumar Jangra, Advocate) made efforts to search out the same and contacted Mauj Deen Clerk. After making hard efforts, he was able to find out the paper book of the instant appeal. Taking the responsibility of not filing the appeal within due period meant for re-filing, on account of unavoidable circumstances, learned counsel for the applicant prayed that the delay of 1371 days in re-filing the appeal occurred due to his fault and the applicant may not be allowed to suffer in this respect. The delay caused was not stated to be intentional but due to unavoidable circumstances, narrated here-in-above. On the basis of the aforesaid allegations, condonation of delay of 2 days in filing and 1371 days in re-filing the appeal has been sought for, in the manner indicated here-in-above. First application is supported by the affidavit of the applicant, while the second is duly supported by the affidavit of Mr. Dinesh Kumar Jangra, Advocate. 5. The respondent contested the application for condonation of delay in re-filing the appeal and filed the reply, inter-alia, pleading that the delay in re-filing the appeal has not been duly explained at all. Succinctly, according to the respondent, since no sufficient cause has been shown for condoning the delay, so, the application be dismissed. 6. After hearing the learned counsel for the parties, after going through the record with their valuable help and after considering the matter deeply, to my mind, there are sufficient grounds to condone the delay in this context. 7. As is evident from the record, the applicant-appellant filed the appeal presumably within a period of limitation, but the same was returned by the Registry on the ground that there was a delay of two days. Mr. Dinesh Kumar Jangra, Advocate has explained, in his affidavit, the circumstances for causing the delay in re-filing the appeal as depicted here-in-above. Therefore, to me, there appears to be no ground to disbelieve the affidavit of applicant's counsel in this relevant connection. 8. Mr. Dinesh Kumar Jangra, Advocate has explained, in his affidavit, the circumstances for causing the delay in re-filing the appeal as depicted here-in-above. Therefore, to me, there appears to be no ground to disbelieve the affidavit of applicant's counsel in this relevant connection. 8. However, the main cosmetic argument of the learned counsel for the respondent that as sufficient grounds have not been pleaded by the applicant, therefore, the delay of 1371 days in re-filing the appeal cannot be condoned, is neither tenable nor the observations of this Court in case Darshan Singh v. Surjit Singh (2008-2) P.L.R. 336 are at all applicable to the facts of this case, whereinthe report of the Registry was as under:- “RSA was filed on 16.5.2005. It was returned to the counsel on 27.5.2005 with the following objections:- “Paper book should be page-marked. Fair typed copy of judgment should be filed.” The appeal was re-filing on 17.10.2006 after compliance. On 18.10.2006, Registry again returned the appeal with the following objections:- “Refiling application should be signed by the Ld. Counsel. Objection dated 27.5.2005 still not complied with. How the Court Fee assessed and affixed, please give detail?” This time the appeal was re-filed on 23.12.2006. Appeal was again returned on 27.1.2007 as the appeal was re-filed without complying the objections earlier raised. Appeal was again re-filed on 23.2.2007. Again appeal was returned to the counsel on 22.3.2007 with the following objections:- “Learned counsel is requested to visit personally regarding opening sheet and law point.” Appeal was re-filed on 16.4.2007 vide Diary No.08549.” 9. The main ground, urged in the application for condoning the delay in re-filing the appeal therein, was unfortunate death of brother-in-law of the applicant on 21.1.2006. So, on the peculiar facts and circumstances of that case, it was observed that “even if the period upto the death of brother-in-law of the applicant and further moratorium of one or two months is given, as there was absolutely no explanation for not re-filing the appeal within reasonable time, therefore, the application for condoning the delay of 509 in re-filing the same was dismissed. 10. Possibly, no one can dispute about the aforesaid observations, but the same would not come to the rescue of the respondent in the present controversy. In the instant case, Mr. 10. Possibly, no one can dispute about the aforesaid observations, but the same would not come to the rescue of the respondent in the present controversy. In the instant case, Mr. Dinesh Kumar Jangra, Advocate has filed his own affidavit stating therein that after collecting the paper book from the Registry, his earlier Clerk mistakenly has put the same in the file of indicated admitted case and kept in the bundle of admitted cases. 11. An identical question arose for consideration before this Court in case Karnail Singh v. Piara Singh 2002 (2) P.L.J.261, in which, under similar circumstances, it was ruled that the delay in re-filing the appeal on account of misplacing and mixing the paper book in decided cases by the Clerk of the Advocate was held to be sufficient cause for condoning such delay. These observations “mutatis mutandis” are applicable to the facts of the present case. 12. There is another aspect of the matter, which can be viewed from a different angle. The fundamental jurisprudence and the basic concept of law of limitation is well settled. The Hon'ble Apex Court in cases Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others, AIR 2002 Supreme Court 1201 and The State of West Bengal v. The Administrator, Howrah Municipality and others, (1972) 1 Supreme Court Cases 366 : AIR 1972 SC 749, has reiterated that the expression "sufficient cause" within the meaning of Section 5 of the Act should receive a liberal construction when no mala fide is imputable to a party, so as to advance substantial justice. 13. Sequelly, in case Sital Prasad Saxena (dead) by LRs v. Union of India and others, AIR 1985 Supreme Court 1, it was ruled that the Courts should recall that “what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties. 14. Likewise, the Hon'ble Supreme Court in cases N. Balakrishnan v. M. Krishnamurthy, (1998) 7 Supreme Court Cases, 123 and Collector, Land Acquisition, Anantnag and another v. Mst. 14. Likewise, the Hon'ble Supreme Court in cases N. Balakrishnan v. M. Krishnamurthy, (1998) 7 Supreme Court Cases, 123 and Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 Supreme Court 1353, has held that 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 in a meaningful manner which sub serves 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 justifiably 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 enumerated the following principles:- 1. Ordinarily 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 malafides. 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. 15. 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. 15. Therefore, it is not a matter of dispute that the delay in re-filing the appeal had occurred on account of Clerk of counsel and the poor/prudent litigant cannot be blamed in this context. A litigant cannot possibly be allowed to suffer on account of inaction and negligence on the part of his Advocate. Moreover, no motive can possibly be attributed to the applicant that he was benefitted in any manner by late re-filing the appeal. Thus, the contrary arguments of the learned counsel for the respondent “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. The case of the applicant squarely falls within the ambit of and the law laid down by the Hon'ble Supreme Court in the aforesaid judgments is the complete answer to the problem in hand. 16. In the light of the aforesaid reasons, the instant applications are accepted, the delay of 2 days in filing and 1371 days in re-filing the appeal is hereby condoned in the obtaining circumstances of the case 17. Needless to say that the filing of the appeal be treated within limitation. RSA No. 4595 of 2009 Adjourned to 30.09.2010 for arguments. Application Allowed.