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2013 DIGILAW 326 (CHH)

Kamala Bai v. Panchuram

2013-11-12

P.SAM KOSHY

body2013
ORDER P. Sam Koshy, J. 1. By way of the instant second appeal, the appellants intend to challenge the judgment and decree dated 16.07.2001 passed by the 1st Additional District Judge, Rajnandgaon in Civil Appeal No. 16-A/01. By way of the said judgment, the 1st appellate court has confirmed the judgment 17.1.1996 passed by Civil Judge, Class-1, Rajnandgaon in Civil Suit No. 61-A/91. Though the impugned judgment in the instant second appeal is dated 17.7.01 but the same has been filed only on 18.8.03 as such the appeal is barred by time by 659 days. 2. M.C.P. No. 1286/2003 has been filed by the appellants under Section 5 of the Limitation Act seeking condonation of delay of 659 days, which is more than 2 years and in the said application, the grounds raised by the appellants are as follows:-- (I) Firstly, the appellant/plaintiff No. 1 is a widow, (II) Secondly, the appellants/plaintiffs are ignorant of the provisions of law, (III) Thirdly, the appellants/plaintiffs faced paucity of funds for expenses to be incurred in the course of filing of the appeal, and (IV) Lastly, the appellants/plaintiffs engaged a counsel who had subsequently stopped practice on his being appointed as judicial officer. 3. On perusal of the said application, it is reflected that the appellant has in a very casual manner, not explained anything in respect of the delay that has been occurred in filing of the instant appeal, except for giving description of the condition of the appellant/plaintiff No. 1 being a widow, the appellants being ignorant of law and having paucity of funds. The appellants/plaintiffs have not explained as to what in fact prevented them from filing the appeal after certified copy was received by them on 25.9.01. 4. Another aspect which should be borne in mind is that the defendants/respondent No. 1 in the instant case namely Panchuram had already filed an appeal against the impugned judgment dated 16.7.01 on 26.9.01 wherein the appellant/plaintiff No. 1 in the instant appeal is the respondent No. 1 which is registered as Second Appeal No. 358/2001. From the perusal of the record of SA No. 358/2001, it is also reflected that the said appeal came up for hearing in November, 2001 and notices were also ordered to be issued to the respondents therein i.e. the appellants in the instant appeal. From the perusal of the record of SA No. 358/2001, it is also reflected that the said appeal came up for hearing in November, 2001 and notices were also ordered to be issued to the respondents therein i.e. the appellants in the instant appeal. On receipt of notice from the court, the appellants herein who are the respondents in SA No. 358/01 had already contacted their counsel and had entered appearance in the court through their counsel on 14.1.02. Therefore, for all practical purposes, it is to be accepted and evidently clear that the appellants in fact had the knowledge that the impugned order has been passed by the 1st appellate court on 16.7.01 and it was also clear that the respondents/defendants in the present appeal have already challenged the said order dated 16.7.01 by way of second appeal. The appellants had all the occasion for considering as to whether they intended to challenge the appeal or not and if at all they had any plans of preferring an appeal, it ought to had been done so immediately. However, in spite of the fact that the appellants had entered appearance on 14.1.02 by engaging a counsel in SA No. 358/01, the appellants for the reasons best known, slept over their right and did not challenge the impugned order till 18.8.03 when the present appeal was filed. Keeping all these aspects in mind, the appellants ought to have given more details and a better explanation seeking condonation of the delay. However, except for a bald statement that they had no legal knowledge and that appellant No. 1 being widow and also the fact that the counsel engaged by them in SA No. 358/01 has been selected as a judicial officer, they have not cared to give details of the period of delay. Apparently, the application under Section 5 of the Limitation Act is very vague and does not have any plausible explanation which needed to show sufficient cause for not filing the appeal within the stipulated period particularly in the light of the act on the part of the appellants in entering appearance through their counsel in the second appeal preferred by the defendants herein against the same impugned judgment. 5. 5. Counsel for the appellants made a submission before the court that taking into consideration the fact that the appellant No. 1 is a widow, the fact that she belongs to a rural background and not having sufficient means, the application under Section 5 is liable to be considered liberally giving advantage to the appellants. 6. Per contra, counsel for respondent - Panchuram i.e. the appellant in SA No. 358/01 who has already submitted a detailed objection to the application under Section 5 of Limitation submits that no sufficient grounds have been shown by the appellants in the application under Section 5 of the Limitation Act. That the application does not have any details in respect of the inordinate delay that has occurred in the filing of the appeal. He further submits that when the appellants could enter appearance in SA No. 358/01 as early as on 14.1.02, there was no reason why the appellants should have waited for filing of the same. He further submits that the application under Section 5 filed by the appellants is totally misconceived and suffers from bona fides. 7. Considering the rival submissions made by counsel for the parties, it is relevant at this juncture to refer to a recent decision of the Supreme Court in the matter of Balwant Sinah (Dead) Vs. Jagdish Singh and others (2010) 8 SCC 685 wherein dealing with the question of condoning the delay and reference to Section 5 of the Limitation Act in paragraphs-33 to 38, the Supreme Court has discussed as to how an application under Section 5 of the Limitation Act should be considered by the courts. The Supreme Court while discussing the same has, in paragraph-33 said that while dealing with the application under Section 5, the courts should not give such an interpretation to the provisions which would render the provision ineffective or odious. The court has also expressed its view that if it is the contention of counsel for the appellants that the court should take a liberal approach and interpret the provisions of Order 22 Rule 9 CPC and Section 5 of the Limitation Act in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. The said approach or interpretation would hardly be permissible in law. The said approach or interpretation would hardly be permissible in law. The Supreme Court has in paragraphs-34 to 36 & 38 also has discussed on this issue as to what is sufficient cause so as to condone the delay that has occurred which is as under:-- 34. 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. 35. 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. 36. We find it unnecessary to discuss the instances which would fall under either of these classes of case. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. XXX XXX XXX 38. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. XXX XXX XXX 38. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the court would be inclined to condone the delay in filing of such applications. 8. After considering the observations made by the supreme court in the judgment cited above and on going though the application under Section 5 of Limitation Act filed by the appellants, it is quite clear that the appellants had ample opportunity of filing the appeal within the stipulated period and if not within a reasonable period. However, though the appellant did not choose to file an appeal immediately after the judgment of the lower appellate court was passed on 16.7.01, the appellants also failed to file an appeal within a reasonable time after the appellants had received notice in SA No. 358/01 which is against the same impugned order which the appellants intend to challenge in this appeal. Therefore, it cannot be easily held that there was bona fide reasons for the appellants in the filing of the appeal beyond the period of limitation. The application and the submissions made by the appellants also fail to show that the appellants had taken normal care and caution ensuring prompt appeal to have been filed. Therefore, it cannot be easily held that there was bona fide reasons for the appellants in the filing of the appeal beyond the period of limitation. The application and the submissions made by the appellants also fail to show that the appellants had taken normal care and caution ensuring prompt appeal to have been filed. For all these reasons, since the appellants have failed to show sufficient cause in not filing the appeal within the stipulated period, the application under Section 5 of the Limitation Act i.e. M.C.P. No. 1286/03 being devoid of substance, the same is rejected and consequently the appeal also fails. No order as to costs.