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2010 DIGILAW 50 (ALL)

Munni Devi v. Shiv Prakash @ Putan

2010-01-05

ANIL KUMAR

body2010
Anil Kumar, J.:- List revised. None present on behalf of the respondents. Heard Sri Mohd. Saeed, learned counsel for the revisionist and perused the record. 1. Learned counsel for the revisionist submits that on 16.10.1986 respondent nos.1 to 3 of the present revision had filed a suit for permanent injunction in the court of Munsif Purwa, Unnao, which was registered as Regular Suit No.128 of 1986 (Shiv Prakash and others Vs. Smt. Munni Devi and others). In the said suit the present revisionist Smt. Munni Devi, who is respondent no.1, had taken a preliminary objection to the effect that the suit filed by the respondent no.1 to 3 is not maintainable before the trial Court in view of provisions as provided under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act as such an issue no.1 had been framed by the trial court to the said effect and after hearing the parties the trial court by order dated 21.1.2000 decided the said issues holding therein that the suit is cognizable by the civil court. 2. The order dated 21.1.2000 was challenged by the present revisionist before the District Judge, Unnao by way of revision under Section 115 of C.P.C. as the said revision is barred by time so an application for condonation of delay under Section 5 of the Limitation Act supported by an affidavit had been filed and accordingly a Civil Misc. Case No.136 of 2000, Smt. Munni Devi Vs. Shiv Prakash was registered before the District Judge, Unnao. 3. By order dated 2.9.2000 District Judge, Unnao dismissed the petitioner's application for condonation of delay under Section 5 on the ground that no sufficient reason had been shown for filing the revision at a belated stage and further by the said order the Original Suit No.128 of 1986, Shiv Prakash and others Vs. Smt. Munni Devi was transferred from the court of Civil Judge, Purwa, Unnao to Civil Judge (Junior Division) North, Unnao. 4. The order dated 2.9.2000 passed by District Judge, Unnao in Misc. Case No.136 of 2000 is challenge before this Court by way of present revision. 5. Further this Court on 22.11.2000 has passed the following order:- "Admit. 6. Issue notice to opposite parties 1 to 4 returnable at an early date. 7. 4. The order dated 2.9.2000 passed by District Judge, Unnao in Misc. Case No.136 of 2000 is challenge before this Court by way of present revision. 5. Further this Court on 22.11.2000 has passed the following order:- "Admit. 6. Issue notice to opposite parties 1 to 4 returnable at an early date. 7. In the meantime, operation of the impugned order dated 2.9.2000 passed by District Judge, Unnao shall remain stayed consequently further proceedings in Reg. Suit No.128 of 1986 pending in the court of Civil Judge (Jr. Div ) North, Unnao shall remain stayed till the next date of listing. List in Jan. 2001." 8. Admittedly in the present case, the application which was moved by the revisionist under Section 5 of the Limitation Act thereby had been rejected by order dated 2.9.2000 passed by District Judge, Unnao in Civil Misc. Case No.136 of 2000. It has been the constant view of Hon'ble Supreme Court and this Court that the principles of natural justice must be followed and nobody should be condemned unheard and if any order is passed without hearing the parties then the same is violation of principle of natural justice and cannot be sustained in law so the order dated 2.9.2000 is not sustainable and liable to be set aside. 9. Further in the matter of condonation of delay, the Apex Court has consistently held that pragmatic view should be taken. 10. In the case of Collector Land Acquisition Vs. Mst. Kati Ji and others, 1987(13) ALR 306 (SC) Hon'ble Supreme Court held as follows:- "The legislator has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matter 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 of 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." 11. And such a liberal approach is adopted on principle as it is realized that: 1. 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." 11. And such a liberal approach is adopted on principle as it is realized that: 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 he decided on merit 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 and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not 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 grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injsutice and is expected to do so." 12. In N. Balakrishnan Vs. M. Krishnamurthy,(1998) 7 SCC 133 the Apex Court explained the scope of limitation and condonatin of delay, observing as under :- " 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 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 rights of parties . They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy." 13. Rules of limitation are not meant to destroy the rights of parties . They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy." 13. In Smt. Prabha Vs. Ram Praskash Kalra, 1987 (Suppl.) SCC 338 the Supreme Court took the view that the Court should not adopt an injustice- oriented approach in rejecting the application for condonation of delay. 14. In Vedabai alias Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil and others, 2001 (44) ALR 577 (SC) the Apex Court made a distinction in delay and inordinate delay observing as under:- " In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the otherwise will be a relevant factor so the case calls for a more cautious approach....." 15. In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, AIR 1976 SC 237 Hon'ble Supreme Court held that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression" sufficient cause" should receive a liberal construction. 16. In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 , the Hon'ble Supreme Court held that unless want bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out of any delay cannot be refused to be condoned. 17. In O.P. Kathpalia Vs Lakhmir Singh, AIR 1984 SC 1744 the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. 18. In view of above said facts, the revision is allowed. 17. In O.P. Kathpalia Vs Lakhmir Singh, AIR 1984 SC 1744 the Hon'ble Supreme Court held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. 18. In view of above said facts, the revision is allowed. The order dated 2.9.2000 passed by the District Judge, Unnao is set aside, the matter is remanded back to the District Judge, Unnao to decide the matter in question after giving opportunity of hearing to the parties concerned in accordance with law expeditiously say within a period of three months from the date of receipt of a certified copy of this order.