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2011 DIGILAW 1122 (HP)

Pyare Lal v. Kamla Devi

2011-03-09

RAJIV SHARMA

body2011
JUDGMENT Rajiv Sharma, Judge. This is an application filed under Section 5 of the Limitation Act, for condonation of delay in filing the present regular second appeal against the judgment and decree dated 18.2.2008 passed by the learned Additional District Judge (Fast Tract Court), Solan, camp at Nalagarh. The judgment and decree was passed by the learned Additional District Judge (Fast Track Court), Solan, on 18.2.2008. Certified copy of the same was applied for on 8.1.2010. The same was prepared and delivered to the appellant on 11.1.2010. The present appeal has been filed on 26.2.2010. There is a delay of 1 year, 8 months and 5 days in filing the regular second appeal against the judgment and decree dated 8.2.2008 passed by the learned Additional District Judge (Fast Tract Court), Solan, camp at Nalagarh. 2. Mr. Sanjeev Kuthiala, learned counsel for the appellant has strenuously argued that the appellant is an agriculturist and was not apprised by his counsel that his first appeal stood decided on 18.2.2008. He came to know about the decision only in the first week of January, 2010 and thereafter he applied for the certified copy. He came to Shimla in the 3rd week of January, 2010 and he was apprised that the appeal shall be filed only after the vacation. The regular second appeal was prepared and filed on 26.2.2010. Mr. Sanjeev Kuthiala, learned counsel for the appellant has also argued that his client was diligent in pursuing his case. He also argued that his client is hard of hearing. Appellant/applicant has also led evidence by way of affidavit sworn on 12th December, 2010. He finally contended that the provisions of Section 5 of the Limitation Act are to be construed liberally. 3. Mr. Malay Kaushal, Advocate appearing vice learned counsel for respondent No.1 has vehemently argued that there is no sufficient cause made out by the appellant to condone the delay. He has referred to the affidavit filed by his client on 10th December, 2010. According to him, the appellant belongs to Baddi Industrial Area and was aware of the judgment and decree dated 18.2.2008 passed by the first appellate court. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The judgment and decree is dated 18.2.2008. Appellant is an agriculturist. According to him, the appellant belongs to Baddi Industrial Area and was aware of the judgment and decree dated 18.2.2008 passed by the first appellate court. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The judgment and decree is dated 18.2.2008. Appellant is an agriculturist. It is believable that the appellant has not been apprised about the judgment and decree dated 10.2.2008 by his learned Advocate. There is no reason why the appellant would not pursue his legal remedies available to him. He came to know about the judgment and decree, as noticed above, in the first week of January, 2010. He applied for the certified copy on 8.1.2010 and the same was made available to him on 11.1.2010. He came to Shimla and contacted his Advocate, who filed the regular second appeal on 26.2.2010. Appellant is also hard of hearing. The benefit of this handicap must be given to the appellant. Mr. Malay Kaushal, Advocate appearing vice learned counsel for respondent No.1 has also argued that the appellant is in the habit of delaying the proceedings. According to him, the appellant has also filed the first appeal before the learned Additional District Judge after the period of limitation was over. He also argued that the present application has been filed to delay the execution proceedings. 6. The Court is of the considered view that the provisions of Section 5 of the Limitation Act must be construed liberally. The appellant has shown sufficient cause. The hypertechnical approach in this case is to be avoided and that the conduct of the party is also required to be seen. There can be no straitjacket formula to come to the conclusion if sufficient and good grounds have been made out or not. Their Lordships of Hon’ble Supreme Court in Improvement Trust, Ludhiana versus Ujagar Singh and others, (2010) 6 SCC 786 have held that it is the duty of the Court to see it that justice should be done between the parties. Their Lordships have further held that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. Their Lordships have further held that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. Their Lordships of the Hon’ble Supreme Court have held as under (paras 16, 19 to 22):- “While considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. In our opinion, the ends of justice would be met by setting aside the impugned orders and the matter is remitted to the executing court to consider and dispose of the appellant’s objections filed under Order 21 Rule 90 CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on such technicalities. Apart from the above, the appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the court to see to it that justice should be done between the parties. For the aforesaid reasons the impugned orders passed by the appellate court, and the order passed by the High Court, are hereby set aside and quashed. As a consequence, the matter stands remitted to the executing court for deciding the appellant’s application filed under Order 21 Rule 90 CPC at an early date on merits. For the aforesaid reasons the impugned orders passed by the appellate court, and the order passed by the High Court, are hereby set aside and quashed. As a consequence, the matter stands remitted to the executing court for deciding the appellant’s application filed under Order 21 Rule 90 CPC at an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and Respondent 5, both would appear before the executing court on 20-7-2010. Being an old case an endeavour would be made by the executing court to take up the case as far as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no opinion on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits. We are conscious of the fact that Respondent 5 has been put to inconvenience and harassment as admittedly it had deposited a huge amount of Rs.22,65,000 in the year 1992 but has not been able to get any fruits thereof till date. Therefore, the appellant’s appeal is allowed subject to payment of Rs.50,000 (Rupees fifty thousand) to Respondent 5 within three weeks hereof. Payment of costs is a condition precedent, without which the appellant would not be allowed to prosecute its objections. The appeal therefore stands allowed to the aforesaid extent. The appellant to bear the costs throughout.” 7. Similarly, their Lordships of Hon’ble Supreme in Oriental Aroma Chemical Industries Limited Versus Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 while construing Section 5 of the Limitation Act have held as under (paras 14 and 15):- “We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression “sufficient cause” employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate–Collector (L.A.) v. Katiji, N. Balakrishanan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil.” 8. Accordingly, in view of the observations and discussion made hereinabove and definitive law laid down by their Lordships of Hon’ble Supreme Court in the judgments cited above, the application is allowed. Delay of 1 year 8 months and 5 days in filing the regular second appeal is condoned.