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2012 DIGILAW 795 (RAJ)

Kani Devi v. Ramesh Chand

2012-03-30

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—This order will dispose of application filed by the defendant-appellant under Section 5 of the Limitation Act to condone the delay caused in filing the appeal preferred against the impugned Exparte judgment and decree dated 13.5.1997 passed by the Additional District Judge No. 1, Ajmer in Regular Civil Suit No. 68/96 filed by the plaintiff-respondents for specific performance of agreement to sell dated 16.7.93. It is an admitted fact that the appeal is delayed by 3541 days. 2. It has been averred in the application that when they were served with notices for appearance issued by the Court below in Execution Case No. 41/2003, they engaged advocate Shri S.D. Sharma and asked him to make necessary inquiry about the case and thereafter it was informed by Mr. Sharma to them that an exparte decree dated 13.5.1997 has been passed by the court below in Suit No. 68/96 filed by the respondents for specific performance of agreement of sell dated 16.7.93 and thereby they were for the first time made aware of the fact that such an exparte decree has been passed against them. It was further averred by them that they being illiterate ladies residing in villages and being unaware of legal provisions and court procedures could not file the appeal in time and as soon as they were advised to file appeal, they without any delay has filed the same. 3. Reply to the application was filed by the respondents and apart from other facts it was averred by them that the appellants filed an application under Order 9 Rule 13 CPC to set aside the impugned judgment and decree dated 13.5.97 in the court below on 18.2.1998 as CMA No. 118/98 and the same was dismissed by the Court below vide order dated 25.1.2002. It was further averred by the respondents that the appellants have falsely stated that they for the first time made aware of the impugned judgment and decree dated 13.5.97 when they were served with notices issued by the Court below in Execution Case No. 41/2003. 4. Rejoinder to the reply was filed by the appellants stating therein that no application under Order 9 Rule 13 CPC was ever filed by them as they were not aware of the fact that an exparte decree against them has been passed in Civil Suit No. 68/1996 on 13.5.1997. 4. Rejoinder to the reply was filed by the appellants stating therein that no application under Order 9 Rule 13 CPC was ever filed by them as they were not aware of the fact that an exparte decree against them has been passed in Civil Suit No. 68/1996 on 13.5.1997. It was also averred by them that they did not engage any advocate for filing the said application and the "Vakalatnama" allegedly filed on behalf of them by advocate Shri S.K. Saksena do not contain many essential details and particulars as mentioned in the rejoinder. It was alleged by the appellants that advocate Shri S.K. Saksena in collusion with the respondents, who were having some blank papers with them signed by the appellants, has misused and abused the process of law. 5. The application filed under Sec.5 of the Limitation Act was considered by this Court and vide order dated 17.1.2009 it was directed that an inquiry shall be held by the Court below on the issues which have been raised in the application, the reply and the rejoinder and after allowing the parties to lead evidence, the Court below shall remit its report with findings to this Court. 6. In compliance of that order, an inquiry was held and during that inquiry evidence was collected and the learned Court below has sent its findings with reasons. 7. Before proceeding further, it is useful to narrate some of the relevant facts in brief necessary for the disposal of this application which are as below:- (i) Regular Civil Suit No. 68/1996 was filed by the respondents against the appellant before the Court below for specific performance of agreement to sell allegedly executed by the appellants on 16.7.1993; (ii) An order was passed on 8.11.1996 to proceed exparte against the appellants finding that they failed to appear before the Court below despite due service of summons; (iii) Exparte judgment and decree was passed in the above suit on 13.5.1997; (iv) On 20.1.1998 application No. 1115 was filed by Advocate Smt. Nirmala Sharma on behalf of appellants in C.S. 68/1996 to obtain certified copies of judgment and decree dated 13.5.1997. (v) An application (Ex.A/9) under Order 9 Rule 13 CPC alongwith an affidavit (Ex. (v) An application (Ex.A/9) under Order 9 Rule 13 CPC alongwith an affidavit (Ex. A/10) of appellant-Smt. Kani Devi was filed on 18.2.1998 on behalf of appellants by Advocate Shri S.K. Saksena to set aside the exparte decree dated 13.5.1997 which was registered as CMA No. 118/1998. Advocate Shri S.K. Saksena (AW-6) also filed his Vakalatnama (Ex.A/12) on behalf of appellants alongwith this application. An application (Ex.A/45) under Section 5 of the Limitation Act dated 13.10.1998 alongwith an affidavit (Ex.A/11) of appellant-Smt. Kani Devi dated 13.10.1998 was also filed on 20.1.1999. Certified copy of judgment and decree dated 13.5.1997 were also filed which were issued on application No. 1115 dated 20.1.1998 filed by Advocate Smt. Nirmala Sharma, an associate of Advocate Shri S.K. Saksena. (vi) Application filed under Section 5 of the Limitation Act was dismissed by the Court below vide order dated 25.1.2002 (Ex.A/46) and as a consequence of it application under Order 9 Rule 13 CPC was also dismissed as time barred; (vii) On 28.1.2002 Vakalatnama (Ex.A/7) was filed by Advocate Shri Man Singh Rawat (AW-3) on behalf of appellant-Smt. Kani Devi in Civil Misc. Case No. 118/98) i.e. application under Order 9 Rule 13 CPC; (viii) On 29.1.2002 an Application No. 1988 (Ex.A/8) was filed by Advocate Shri Man Singh Rawat (AW.3) on behalf of appellants to obtain certified copy of order dated 25.1.2002 in CMA No. 118/1998; (ix) On 11.2.2002 an Application No. 2926 (Ex.A/40) was filed by advocate Shri Man Singh Rawat (AW-3) on behalf of appellants to obtain certified copies of record of Regular Civil Suit No. 68/96. (x) On 9.12.2003 Execution Case No. 41/2003 was filed by the respondents in the Court below for execution of the Exparte decree dated 13.5.1997. (xi) On 27.5.2006 Vakalatanama (Ex.A/15) was filed on behalf of appellants by Advocate Shri Satyadev Sharma (AW-2) and Advocate Shri Rajendra Singh Rawat (AW-4) in Execution Case No. 41/2002) filed by the respondents. In these proceedings appellants moved an application under Section 151 CPC on 4.10.2006 through their counsel Shri Rajendra Singh Rawat (AW.4). (xi) On 27.5.2006 Vakalatanama (Ex.A/15) was filed on behalf of appellants by Advocate Shri Satyadev Sharma (AW-2) and Advocate Shri Rajendra Singh Rawat (AW-4) in Execution Case No. 41/2002) filed by the respondents. In these proceedings appellants moved an application under Section 151 CPC on 4.10.2006 through their counsel Shri Rajendra Singh Rawat (AW.4). (xii) On 11.7.2006 an application No. 16162 (Ex.A/14) was filed by advocate Shri Rajendra Singh Rawat (AW-4) on behalf of appellants to obtain certified copies of record of Regular Civil Suit No. 68/1996 including copy of judgment and decree dated 13.5.1997; (xiii) On 11.7.2006 itself another Application No. 16163 (Ex.A/23) was filed by advocate Shri Rajendra Singh Rawat (AW.4) on behalf of appellants to obtain certified copies of record of Execution Case No. 41/2003; (xiv) On 29.8.2006 an Application No. 20756 (Ex.A/24) was filed by advocate Shri Rajendra Singh Rawat (AW-4) on behalf of appellants to obtain certified copies in Execution Case No. 41/2003; (xv) On 17.1.2007 an Application No. 1438 (Ex.A/13) was filed by advocate Shri Man Singh Rawat (AW-3) on behalf of appellants to obtain certified copies of record of Civil Suit No. 68/1996; (xvi) On 17.1.2007 an Application No. 1447 (Ex.A/25) was filed by advocate Shri Rajendra Singh Rawat (AW-4) on behalf of appellants to obtain certified copies in Execution Case No. 41/2003; (xvii) On 17.5.2008 Vakalatanama (Ex.A/16) was filed by advocate Shri Amar Singh Rathore on behalf of appellants and on 27.5.2008 Application No. 11569 (Ex.A/26) was filed by advocate Shri Amar Singh Rathore to obtain certified copies in Execution Case No. 41/2003; (xviii) On 31.5.2008 Vakalatnama (Ex.A/4) was filed by advocate Shri Amar Singh Rathore on behalf of appellants in CMA No. 118/1998 under Order 9 Rule 13 CPC. On the same date Application No. 12030 (Ex.A/16) was filed by advocate Shri Amar Singh Rathore on behalf of appellants to obtain certified copies of record in CMA No. 118/1998; (xix) On 4.7.2008 Application No. 13872 (Ex.A/5) was filed by advocate Shri Amar Singh Rathore on behalf of appellants to obtain certified copies in CMA No. 118/1998. (xx) Ex.A/28 is copy of affidavit of appellant-Smt. Kani Devi filed in support of rejoinder filed by the appellants in this appeal. (xxi) Ex.A/30 is copy of affidavit dated 25.6.2008 filed by appellant-Smt. Kani Devi is support of complaint made by her against advocate Shri S.K. Saksena, whereas Ex.A/33 is copy of such complaint. (xx) Ex.A/28 is copy of affidavit of appellant-Smt. Kani Devi filed in support of rejoinder filed by the appellants in this appeal. (xxi) Ex.A/30 is copy of affidavit dated 25.6.2008 filed by appellant-Smt. Kani Devi is support of complaint made by her against advocate Shri S.K. Saksena, whereas Ex.A/33 is copy of such complaint. (xxii) Ex.A/34 is the Vakalatnama filed by advocate Shri Vinod Bhardwaj (AW.1) on 16.2.2009 on behalf of appellants during course of inquiry conducted by the Court below. (xxiii) On 22.7.2008 an Application No. 15589 (Ex.A/41) was filed by advocate Shri Amar Singh Rathore on behalf of appellants to obtain certified copies in Civil Suit No. 68/96. Similarly, an Application No. 14842 (Ex.A/42) was also filed by advocate Shri Rathore on 15.7.2008 to obtain certified copies. (xxiv) Alongwith the rejoinder appellants filed certified copy of Vakalatnama (Ex.A/12), copy of Vakalatnama filed by advocate Shri Nekidas on behalf of one Shri Rajendra Prasad, copy of application filed by Shri Rajendra Prasad under Order 22 Rule 10 read with Order 1 Rule 10 CPC. All these copies were obtained upon an application No. 12030 (Ex.A/16) filed on 31.5.2008 for obtaining certified copies by advocate Shri Amar Singh Rathore on behalf of the appellants in CMA No. 118/1998; (xxv) Advocate Shri S.K. Saksena (AW-6) has stated that application (Ex.A/9) under Order 9 Rule 13 CPC was filed by him on behalf of appellants in the Court below on 18.2.98 and alongwith it affidavit (Ex.A/10) executed by appellant-Smt. Kani Devi was also filed and both these bear signature of appellant Smt. Kani Devi. He has also deposed that he also filed an application (Ex.A/45) under Section 5 of the Limitation Act alongwith affidavit (Ex.A/11) on behalf of appellant-Smt. Kani Devi and this affidavit also bears her and his signatures. He has further stated that Vakalatnama (Ex.A/12) was also filed by him which bears his and appellant-Smt. Kani Devi's signature and also of advocates Smt. Nirmala Sharma, Shri Jag Bahadur and Shri Pankaj Yadav. He has also stated that appellant-Smt. Kani Devi signed on Vakalatnama (Ex.A/12) in his presence. (xxvi) In Vakalatnama (Ex.A/12) detailed particulars of appellant-Smt. Kani Devi and case number are not mentioned and it also does not bear the date on which it was executed. Ex.A/9 does not bear signature of appellant-Smt. Maina Devi. He has also stated that appellant-Smt. Kani Devi signed on Vakalatnama (Ex.A/12) in his presence. (xxvi) In Vakalatnama (Ex.A/12) detailed particulars of appellant-Smt. Kani Devi and case number are not mentioned and it also does not bear the date on which it was executed. Ex.A/9 does not bear signature of appellant-Smt. Maina Devi. Similarly, application filed under Section 5 of the Limitation Act also does not bear signature of appellant-Smt. Kani Devi although affidavit (Ex.A/11) filed in support of it bears her signature; (xxvii) Appellant-Smt. Kani Devi has deposed that she does not know advocate Shri S.K. Saksena and Ex.A/9, Ex.A/10, Ex.A/11 and Ex.A/12 do not bear her signatures but she has expressed ignorance about the fact that she got affidavit (Ex.A/10) attested by Oath Commissioner. She has denied the suggestion that by executing Vakalatnama (Ex.A/12) she engaged advocate Shri S.K. Saksena. She has also denied that an application was filed by Advocate Shri Saksena on behalf of her to set said the exparte decree. (xxviii) Advocate Shri Vinod Bhardwaj has stated that he filed Vakalatnama (Ex.A/34) on behalf of both the appellants on their instructions and it bears his and appellants signatures; (xxix) Appellant-Smt. Kani Devi has stated that she did not ever engage any advocate in Ajmer and Vakalatnama (Ex.A/34) does not bear her signature. She has further stated that she never signed any Vakalatnama in Ajmer engaging any advocate; (xxx) Advocate Shri Satyadev Sharma (AW-2) has stated that Vakalatnama (Ex.A/15) was filed by him in Execution Case No. 41/2003 on behalf of appellants when they engaged him as their advocate and it apart from his and appellants signatures also bears signatures of his associate advocates Shri Rajendra Singh Rawat, Shri S.S. Sankhla, Shri Dharmendra Jain and Shri Amar Singh Rathore. He has further stated that in Execution Case No. 41/2003, application (Ex.A/44) was filed on behalf of appellant-Smt. Kani Devi by his associate advocate Shri Rajendra Singh Rawat. Appellant-Smt. Kani Devi has stated that she does not know Advocate Shri Sharma although she admits that Vakalatnama (Ex.A/15) bears her and her daughter's signatures. (xxxi) Advocate Shri Man Singh Rawat (A.W.3) has stated that Vakalatnama (Ex.A/7) was filed by him on behalf of appellant-Smt. Kani Devi and it bears his and Smt. Kani Devi's signatures on it although it was not signed by her in his presence but all other entries are in his hand. (xxxi) Advocate Shri Man Singh Rawat (A.W.3) has stated that Vakalatnama (Ex.A/7) was filed by him on behalf of appellant-Smt. Kani Devi and it bears his and Smt. Kani Devi's signatures on it although it was not signed by her in his presence but all other entries are in his hand. He has further stated that application (Ex.A/8) for obtaining certified copies was filed by him on behalf of appellant-Smt. Kani Devi and it bears his signature and seal of his senior advocate Shri Chandan Singh. He has also deposed that application (Ex.A/13) was filed by him on behalf of appellant in Civil Suit No. 68/96. Similarly, he also filed application (Ex.A/40) on behalf of appellant-Smt. Kani Devi on 11.2.2002. This application was filed by him on the instruction of advocate Shri Chandan Singh and after obtaining certified copies the same were given to Shri Chandan Singh. (xxxii) Appellant-Smt. Kani Devi has stated that she does not know advocate Shri Man Singh Rawat and Advocate Shri Chandan Singh. She has expressed ignorance about the fact whether application (Ex. A/13) for obtaining certified copies was filed by her through advocate Shri Man Singh Rawat. She has denied that Vakalatnama (Ex.A7) bears her signature and application (Ex.A/8) was filed on her behalf; (xxxiii) Advocate Shri Rajendra Singh Rawat (AW-4) has stated that Vakalatnama (Ex.A/15) was filed by advocates Shri Satyadev Sharma, Shri Amar Singh Rathore, Shri Dharmendra Jain and by him on behalf of appellants and both the appellants signed it in his presence. He has also stated that application (Ex.A/23) for obtaining certified copies was filed by him on behalf of appellants on 11.7.2006 in Execution Case No. 41/2003 and it bears his signature. He has further deposed that applications (Ex.A/24) and (Ex.A/25) were also filed by him for obtaining certified copies on behalf of appellants. He has also stated that all the certified copies were obtained by him. (xxxiv) Appellant-Smt. Kani Devi has stated that she does not know advocate Shri Rajendra Singh Rawat and applications (Ex.A/23, A/24 and Ex. A/25) were not filed on her behalf. (xxxv) Advocate Shri Chandan Singh (AW-5) has stated that advocate Shri Man Singh Rawat was his assistant and Ex.A/40 and Ex.A/8 bear seal of his name but he has denied that application Ex.A/40 was filed by advocate Shri Man Singh Rawat on his instructions and certified copies were handed over to him. A/25) were not filed on her behalf. (xxxv) Advocate Shri Chandan Singh (AW-5) has stated that advocate Shri Man Singh Rawat was his assistant and Ex.A/40 and Ex.A/8 bear seal of his name but he has denied that application Ex.A/40 was filed by advocate Shri Man Singh Rawat on his instructions and certified copies were handed over to him. (xxxvi) Advocate-Shri N.L. Agrawal (AW-7) has stated that affidavit (Ex.A/32) was prepared by him on behalf of appellant-Smt. Kani Devi and she signed it in his presence. (xxxvii) Appellant-Smt. Kani Devi has stated that affidavit (Ex.A/32 does not bear her signature and she does not know name of her advocate engaged at Jaipur. Appellant-Smt. Kani Devi in her statement dated 2.9.2009 has stated that about two and half years back her brother-in-law Shri Mahadev told her that the case has been decided and upon that she came to Jaipur and contacted her advocate. (xxxviii) Although, appellant-Smt. Kani Devi has admitted that Vakalatnama (Ex.A/4) bears her and her daughter's signature but she has denied that she engaged advocate Shri Amar Singh Rathore. She also states that she does not know advocate-Shri Rathore. She has further stated that it is wrong to say that application (Ex.A/5) and (Ex.A/26) for obtaining certified copies was filed on her behalf by advocate-Shri Rathore. She has expressed ignorance about the fact that application (Ex.A/6) for obtaining certified copies was filed by advocate Shri Rathore on her behalf. (xxxix) In the application filed under Section 5 of the Limitation Act it has been stated by the appellants that upon service of notices in Execution Case No. 41/2003, they engaged advocate Shri S.D. Sharma and asked him to find out the necessary facts and arrange to defend them as per provisions of law and advocate Shri Sharma assured them that he will take all necessary steps in this regard. They have further averred in the application that the counsel informed that the execution application has been filed to execute the decree dated 13.5.1997 passed in Civil Suit No. 68/96. It has also been averred in the application that thereafter the appellants came to Jaipur on 18.1.2006 and engaged advocate-Shri N.L. Agrawal for filing appeal who asked them to bring the file from their advocate at Ajmer as well as certified copies of some documents. According to appellants thereafter they brought the file and certified copies from Ajmer. It has also been averred in the application that thereafter the appellants came to Jaipur on 18.1.2006 and engaged advocate-Shri N.L. Agrawal for filing appeal who asked them to bring the file from their advocate at Ajmer as well as certified copies of some documents. According to appellants thereafter they brought the file and certified copies from Ajmer. (xl) No application for obtaining certified copies was filed on behalf of appellants after 18.1.2006 and before 24.1.2006, the date on which the present appeal was filed. (xii) In the rejoinder it has been stated by the appellants that after going through the contents of the reply filed by the respondents to the application under Section 5 of the Limitation Act they contended their advocate-Shri Vinod Bhardwaj who was defending them in execution case pending in the Court below and asked him to obtain necessary certified copies of CMA No. 118/98 and thereafter certified copies were obtained by Shri Bhardwaj on 31.5.2008. (xiii) The application (Ex.A/9) filed under Order 9 Rule 13 CPC although runs in five pages but first four pages do not bear signature of appellant Smt. Kani Devi and only the fifth and last page bears her signature. Application (Ex.A/45) filed under Section 5 of the Limitation Act does not bear signature of any of the appellants and it bears signature of only advocate Shri S.K. Saksena. Affidavit filed alongwith this application is also attested by Oath Commissioner. 8. In support of application filed under Section 5 of the Limitation Act, learned counsel for the appellants has raised following grounds: (1) From the evidence available on record it is clear that summons issued in original suit No. 68/96 were not duly served upon the appellants and they never came to know that such suit has been filed against them and an exparte decree has been passed on 13.5.97 and therefore, there was no question of filing an application under Order 9 Rule 13 CPC by them. (2) It is also clear that they did not engage advocate-Shri S.K. Saksena to file such an application for setting aside exparte decree and this is further strengthened by the fact that Vakalatnama (Ex.A/12) does not contain necessary particulars about appellants and it also does not bear the date on which it was executed. (2) It is also clear that they did not engage advocate-Shri S.K. Saksena to file such an application for setting aside exparte decree and this is further strengthened by the fact that Vakalatnama (Ex.A/12) does not contain necessary particulars about appellants and it also does not bear the date on which it was executed. Similarly, although the application runs in five pages but only the last page bears the signature of appellant-Smt. Kani Devi whereas application filed under Section 5 of the Limitation Act does not bear signature of any of the appellants. According to learned counsel all these facts are clear indication of the fact that no such application was filed on the instructions of the appellants and there is every possibility that this application and Vakalatnama was filed by advocate Shri S.K. Saksena in collusion with the respondents who were having some blank papers with them signed by appellant Smt. Kani Devi. It cannot be disputed that both the appellants are illiterate ladies coming from rural back ground and they do not aware of legal provisions and court procedures and therefore, even if after being aware of passing of judgment and decree against them, they could not file this appeal immediately, malafides, negligence or inaction cannot be attributed to them and it cannot be said that they deliberately did not file the appeal within a reasonable time and in these circumstances the delay caused is required to be condoned. It is well settled that if the person seeking condonation of delay comes from a rural background, a liberal view has to be taken. In support of his submissions learned counsel for the appellant relied upon the case of Ramnath Sao @ Ram Nath Sahu & Ors. vs. Gobardhan Sao & Ors. reported in 2002(3) SCC 195 . 9. On the other hand, learned counsel for the appellants submitted that there is ample evidence on record indicating that immediately after passing of exparte judgment and decree dated 13.5.1997 appellants were made aware of that fact and they obtained necessary certified copies and by engaging advocate-Shri S.K. Saksena and his associates filed an application for setting aside the exparte decree and that application was dismissed by the Court below vide order dated 25.1.2002. It is also clear that after that appellants engaged advocate-Shri Man Singh Rawat to obtain certified copies and filed more than one application to obtain certified copies and certified copies were issued to them but no steps were taken by them either to challenge exparte judgment and decree dated 13.5.1997 or order dated 25.1.2002. According to learned counsel for the respondents only upon service of notices in Execution Case No. 41/2003, some steps were taken by them to file the present appeal but it is also clear that even after knowing the fact that exparte decree has been passed against them, no immediate steps were taken by them to file the appeal and it was filed only on 24.1.2007 although according to appellants themselves they were made aware of exparte decree dated 13.5.1997 on 27.5.2006 or immediately thereafter. Learned counsel for the respondents further submitted that if a party does not pursue his rights in a bonafide manner and is guilty of negligence, inaction and latches and fails to show sufficient cause for taking necessary action within the time prescribed by law, liberal view to condone the delay cannot be taken. According to learned counsel for the respondents the appellants are not reliable person due to the reason that they have even denied the fact that they ever engaged any advocate in Ajmer whereas according to application filed by them it is an admitted fact that they engaged advocate-Shri S.D. Sharma and Shri Vinod Bhardwaj in Ajmer to defend and advise them. It was also submitted by learned counsel that it has not been explained by the appellants when exparte judgment and decree has been passed in favour of the respondents, then what was the necessity for them to file an application to set aside that decree in collusion with advocate-Shri S.K. Saksena. According to learned counsel the whole conduct of appellants is such that discretion under Section 5 of the Limitation Act cannot be exercised in their favour. 10. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law. 11. In the case of Ramnath Sao @ Ram Nath Sahu & Ors. vs. Gobardhan Sao & Ors. 10. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law. 11. In the case of Ramnath Sao @ Ram Nath Sahu & Ors. vs. Gobardhan Sao & Ors. (supra) Hon'ble Supreme Court after relying on various decisions of the same Court has held that: "the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act or Order 22 Rule 9 of CPC or any other similar provisions should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Accep-tance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pendantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormus loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 12. In the case of Balwant Singh (Dead) vs. Jagdish Singh & Ors. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 12. In the case of Balwant Singh (Dead) vs. Jagdish Singh & Ors. reported in (2010) 8 SCC 685 = 2010(4) RLW 3517 (SC) Hon'ble Supreme Court has held that: "Whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly." It has been further held that: "liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the court should condone the delay; equally there would be cases where the court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect "sufficient cause" as understood in law." It was also held that: "the expression "sufficient cause" implies the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated." It has also been held that: "the law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 13. Recently Hon'ble Supreme Court in the case of Lanka Venkateshwarlu (Dead) by LRs. vs. State of Andhra Pradesh and Others reported in (2011) 4 SCC 363 has held that: "concepts such as "liberal approach" "justice oriented approach" "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally." 14. In the facts and circumstances of the present case and in the light of the well settled legal position, it is to be considered whether the application filed under Sec. 5 of the Limitation Act is to be allowed or not. 15. Justice must be done to both parties equally." 14. In the facts and circumstances of the present case and in the light of the well settled legal position, it is to be considered whether the application filed under Sec. 5 of the Limitation Act is to be allowed or not. 15. On consideration of facts and circumstances available on record, I am of the firm view that the application cannot be allowed. It is an admitted fact that exparte judgment and decree was passed against the appellants on 13.5.1997 by finding that they did not appear despite due service of summons on them. The question whether the summons were duly served or not upon the appellants is not a subject matter of the present application. From the material available on record it is clear that appellants engaged advocate Shri S.K. Saksena and his associates to file an application under Order 9 Rule 13 CPC for setting aside the exparte and in fact application (Ex.A/9) was filed on behalf of appellants alongwith an affidavit (Ex.A/10) of appellant-Smt. Kani Devi. It is also clear that before filing of that application, Application No. 115 dated 20.1.98 was also filed by advocate Smt. Nirmala Sharma, an associate advocate of Shri Saksena to obtain certified copy of judgment and decree dated 13.5.1997. Advocate Shri Saksena (AW.6) in his statement recorded during inquiry conducted by the Court below in very in clear terms has stated that he was engaged by appellants to file application and in this regard Vakalatnama (Ex.A/12) was also executed by the appellants to engage him as their advocate and he thereafter filed application for setting aside the exparte decree alongwith affidavit of appellant-Smt. Kani Devi on 18.2.1998. He has further deposed that he also filed an application under Section 5 of the Limitation Act alongwith affidavit which bears signature of appellant-Smt. Kani Devi. Nothing has come out in his cross examination so as not to believe his statement. Merely by the reason that Vakalatnama (Ex.A/12) does not contain complete and necessary particulars of appellants and it also does not bear the date on which it was executed, it cannot be said that appellants did not engage Shri Saksena as their advocate. Nothing has come out in his cross examination so as not to believe his statement. Merely by the reason that Vakalatnama (Ex.A/12) does not contain complete and necessary particulars of appellants and it also does not bear the date on which it was executed, it cannot be said that appellants did not engage Shri Saksena as their advocate. Similarly, merely because the application (Ex.A/9) filed under Order 9 Rule 13 CPC does not bear signature of appellant-Maina Devi or application (Ex.A/45) filed under Section 5 of the Limitation Act does not bear signature of both the appellants, it cannot be said that these applications were not filed on behalf of appellants because it is not legally necessary that such applications must be signed by the party or parties on behalf of whom they were filed. Such applications can be signed by the advocate alone. It is pertinent to note that affidavits filed alongwith the applications bear signature of appellant-Smt. Kani Devi. It is further to be noted that both the affidavits were attested by Oath Commissioner. Although, in her statement recorded during inquiry appellant-Smt. Kani Devi has denied the fact that she engaged advocate Shri Saksena for filing application and has also said that both the applications and affidavits do not bear her signature but her statement cannot be believed by the reason that she has even denied the fact of engaging any advocate at any time in Ajmer on her and on her daughter's behalf whereas it is an admitted fact that after 27.5.2006 the appellants engaged some lawyers even at Ajmer to persue their matter and take necessary steps in this regard. In view of this fact this contention of appellants stands completely falsified that for the first time they were made aware of exparte decree dated 13.5.1997 after 27.5.2006 when notices issued in execution case were served upon them. Apart from that, it is also clear that after decision of application under Order 9 Rule 13 CPC on 25.1.2002 appellants engaged advocate-Shri Man Singh Rawat (AW-3) by executing Vakalatnama (Ex.A/7) on 28.1.2002 and on 29.1.2002, an application (Ex. A/8) was filed by Shri Man Singh Rawat to obtain certified copy of order 25.1.2002 passed in Civil Misc. Application No. 118/98. Again an application (Ex.A/40) was also filed by advocate-Shri Rawat on behalf of appellants to obtain certified copies of record of Civil Suit No. 68/1998 on 11.2.2002. A/8) was filed by Shri Man Singh Rawat to obtain certified copy of order 25.1.2002 passed in Civil Misc. Application No. 118/98. Again an application (Ex.A/40) was also filed by advocate-Shri Rawat on behalf of appellants to obtain certified copies of record of Civil Suit No. 68/1998 on 11.2.2002. There is no reason to disbelieve the statement made by Shri Man Singh Rawat during inquiry to the effect that he was engaged by appellants and on their instruction he filed applications to obtain necessary certified copies. Although, appellant-Smt. Kani Devi has again denied the fact that Vakalatnama (Ex.A/7) bears her signature but merely by that denial, the statement made by advocate-Shri Man Singh Rawat cannot be rejected. No explanation has come on record by the appellants that what necessitated Advocate Shri Rawat to obtain certified copies without being instructed by the appellants to do so. This fact also clearly shows that atleast on 28.1.2002 or immediately thereafter, when certified copies were obtained, appellants came into knowledge of the fact that an exparte decree dated 13.5.1997 has been passed against them and to set aside that decree, an application under Order 9 Rule 13 CPC was filed on behalf of them and the same was dismissed by the Court below vide order dated 25.1.2002. It has not been explained by the appellants that if in fact no such application under Order 9 Rule 13 CPC was filed by them, why necessary steps were not taken by them in this regard atleast by making a complaint in the Court below that no such application was filed by them and by committing fraud on the Court order dated 25.1.2002 has been obtained. Further, in the light of the averments made in the application filed under Section 5 of the Limitation Act, it is an admitted fact that the appellants upon service of notices in Execution Case No. 41/2003 engaged advocate Shri S.D. Sharma and asked him to take necessary steps to defend them but even then appellant-Smt. Kani Devi during inquiry has deposed that she does not know advocate-Shri S.D. Sharma although she admits that Vakalatnama (Ex.A/15) bears her and her daughter's signatures. It is pertinent to note that Vakalatnama (Ex.A/15) was filed not only by advocate Shri S.D. Sharma but also by his associates advocate Shri Rajendra Singh Rawat and Shri Amar Singh Rathore whereas appellant has denied that applications for obtaining necessary certified copies were filed on behalf of them by advocate-Shri Rajendra Singh Rawat and Shri Amar Singh Rathore. The appellants have not explained if such applications for obtaining certified copies were not filed on their behalf by advocate-Shri Rajendra Singh Rawat and Shri Amar Singh Rathore them how they procured the certified copies which were filed by them alongwith the appeal and the rejoinder. The appellant-Smt. Kani Devi has even stated that she never engaged any lawyer in Ajmer. If that is the true position, then appellants have further failed to explain through whom they made appearance in the Court below in Execution Case No. 41/2003, obtained necessary certified copies for filing the present appeal and who represented them during inquiry made by the Court below in compliance of the order made by this Court on 17.1.2009. In my view then appellants have stated that they never engaged any advocate in Ajmer including advocate Shri Satya Dev Sharma and Shri Vinod Bhardwaj which statement is clearly against the admitted position available on record, their denial regarding engaging advocate-Shri S.K. Saksena and Shri Man Singh Rawat cannot be believed. It cannot be believed that advocate Shri S.K. Saksena without being engaged by appellants or atleast by appellant-Smt. Kani Devi will obtain certified copy of exparte judgment and decree dated 13.5.1997 through his associate advocate Smt. Nirmala Sharma and then file an application under Order 9 Rule 13 CPC for setting aside the exparte decree. No question of any collusion with respondents arises in view of the fact that after obtaining exparte decree in their favour, there was no necessity for the respondents to file such an application. Learned counsel for the appellants have failed to show what benefit the respondents were going to obtain by filing such a collusive application looking to the fact there was possibility that application can be allowed and exparte decree is set aside. 16. Learned counsel for the appellants have failed to show what benefit the respondents were going to obtain by filing such a collusive application looking to the fact there was possibility that application can be allowed and exparte decree is set aside. 16. One more fact noteworthy is that in her statement made during inquiry appellant-Smt. Kani Devi has stated that about two & half years back her brother-in-law Shri Mahadev apprised her that case has been decided and upon that she came to Jaipur and contacted her advocate whereas in application under Section 5 of the Limitation Act the appellants case is that they came into knowledge of the case and decision made therein only after service of notice issued in Execution Case No. 41/2003. It is thus, clear that appellants have made two different versions about the fact how they were made aware of the case filed against them and the decision made therein. 17. Next, if for the sake of arguments, it is admitted that appellants for the first time came to know about exparte judgment and decree dated 13.5.1997 after service of notice issued by the Court below in execution case and the engaged advocate Shri S.D. Sharma to persue their matter and take necessary steps in this regard and it was advised by advocate Shri Sharma to them that appeal is to be filed against the exparte judgment and decree but even then no steps were taken by them within a reasonable time and they contacted advocate Shri N.L. Agrawal only on 18.1.2007 to file appeal in the High Court although necessary certified copies for filing an appeal were obtained by them on 11.7.2006 by filing application (Ex.A/14). No explanation has come from the side of the appellants when necessary certified copies were available on 11.7.2006 and it was advised by advocate-Shri S.D. Sharma that appeal is required to be filed, then what prevented them to take necessary steps for filing appeal within a reasonable time. No explanation has come from the side of the appellants when necessary certified copies were available on 11.7.2006 and it was advised by advocate-Shri S.D. Sharma that appeal is required to be filed, then what prevented them to take necessary steps for filing appeal within a reasonable time. Merely because appellants come from a rural background and they are illiterate ladies, it cannot be believed that only by that reason necessary steps could not be taken by them, more particularly looking to the fact that appellants after service of notice issued in execution case, engaged an advocate and appeared through him in that case and also filed an application under Section 151 CPC on 4.10.2006 and without any undue delay also obtained necessary certified copies required to file an appeal in High Court. It is hard to believe that being illiterate ladies and their rural background prevented the appellants for taking immediate steps in this regard. It is pertinent to note that on 11.7.2006 itself and on 29.8.2006 also applications for obtaining certified copies were filed on behalf of appellants in Execution Case No. 41/2003. This fact is a clear indication of the fact that appellants were well aware what next necessary steps are required to be taken by them to get over the decree passed against them. Although, it is well settled legal position that the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice but the principle is applicable only when no negligence or inaction or want of bona fides is imputable to the party concerned. Similarly, the principle that acceptance of explanation furnished should be the rule is applicable only when no negligence or inaction or want of bona fides can be imputed to the defaulting party. It is also well settled principle of law that the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. It is also well settled that if a party is guilty of negligence, inaction and latches, discretion vested in the Court to condone the delay caused cannot be exercised in favour of such a party. It is also well settled that if a party is guilty of negligence, inaction and latches, discretion vested in the Court to condone the delay caused cannot be exercised in favour of such a party. The delay caused for not taking necessary steps in a prescribed period can be condoned only in the presence of legal and adequate reasons. In the present case, the conduct of the appellants from the very beginning has been very negligent and they even after being made aware of the fact that the appeal has to be filed did not take necessary steps within a reasonable period and without any reasonable and plausible cause waited till 18.1.2007 to contact a lawyer to file appeal in the High Court. I am of the view that looking from any angle, the appellants are not entitled to get sympathy of the Court and the discretion can not be exercised in their favour. 18. Consequently, the application filed under Section 5 of the Limitation Act is dismissed. As a consequence of that, the appeal is also dismissed as time barred. Stay application also stands dismissed.