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2012 DIGILAW 807 (HP)

Jai Prakash Pal v. Sudheer Chand

2012-11-07

DEV DARSHAN SUD

body2012
Judgment Dev Darshan Sud, J. This application has been preferred under Section 5 of the Limitation Act praying for condonation of delay in instituting the present appeal which is barred by 367 days. 2. It was pleaded by the applicant-appellant, who was the plaintiff before the learned Court below, that he was prevented from filing the appeal because on 19.4.2011, when the applicant obtained a certified copy of the order passed by the High Court in CMPMO No.193 of 2010, wherein status quo order was set aside, all sincere efforts were made to trace the case file papers which could not be found by him and it was only on 8.5.2011 when he found the file and accordingly instituted the appeal on 9.5.2011 (10.5.2011). There was a delay of 367 days in instituting the appeal. The order challenged by the appellant is the appellate order dated 28.12.2009 dismissing the appeal preferred by the applicant-appellant affirming the judgment and decree of the learned trial Court dismissing the suit of the appellant praying for permanent prohibitory and mandatory injunction. 3. Adverting to the facts of the present application, which was contested by the respondents, wherein allegations were that the applicant is not novice and has been fighting with the respondents tooth and nail in a number of cases. 4. The application was put up for evidence of the applicant-appellant on the issue whether sufficient cause was made out for condonation or not. The applicant appeared as AW-1, who after narrating the sequence of litigation, states that, “I could not challenge this order in time because I had suffered considerable financial loss/damages. I decided to challenge the action taken by the respondent after the order passed by this Court. I was under the mental tension and financial hardship and for this reason I could not file the appeal within time.” He has been cross-examined at length where he admits that he used to instruct counsel and was visiting various Courts regularly. He came to know about the dismissal of the appeal, against which he preferred the present appeal in January, 2010. He also admits that he had been instructing his counsel to obtain certified copy of the appellate orders, which was received by him after 10-12 days. 5. He came to know about the dismissal of the appeal, against which he preferred the present appeal in January, 2010. He also admits that he had been instructing his counsel to obtain certified copy of the appellate orders, which was received by him after 10-12 days. 5. There is nothing on the record to establish that the applicant-appellant was ill or that he had suffered some kind of disability which prevented him from filing the appeal within time. In Postmaster General & Others vs. Living Media India Limited and Another, (2012)3 SCC 563 , the Supreme Court holds:- “24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under: (Pundlik Jalam Patil vs. Jalgaon Medium Project, (2008)17 SCC 448, SCC pp.457-58, paras 29-30) "29. It needs no restatement at our hands that the object for fixing time- limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/ resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest." (pp.572-573) 6. In Cicily Kallarackal vs. Vehicle Factory, (2012)8 SCC 524 , the Supreme Court holds:- “6. This court in Anshulal Aggarwal v. Noida, (2011)14 SCC 578 has explained the scope of condonation of delay in matter where the special courts/tribunal have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the court must keep in mind the special period of limitation prescribed under the statute(s). 7. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay. 8. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.” (p.526) 7. I do not find any cogent reason having been put forth by the applicant-appellant proved on the record explaining delay, rather what the applicant states in examination-in-chief is neither substantiated by any documentary proof nor pleaded. Application dismissed. RSA No.278 of 2011. In view of the order passed in CMP(M) No.806 of 2011, this appeal is dismissed.