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2014 DIGILAW 10 (PAT)

Ranjit Prasad Singh v. Ashok Kumar Singh

2014-01-03

MUNGESHWAR SAHOO

body2014
ORDER Heard the learned counsel, Mr. Neeraj Kumar Sinha, appearing on behalf of the petitioner and the learned counsel, Mr. Deepak Kumar Sinha, appearing on behalf of the opposite party. 2. This civil revision application has been filed by the defendant petitioner against the order dated 19.12.2009 passed by the learned Munsif, Naugachia in Misc. case No.06 of 2009, i.e., a proceeding under Order 9 Rule 4 C.P.C. whereby the learned Court below allowed the application and restored the title suit No.33 of 1989 to its original file. 3. The learned counsel appearing on behalf of the petitioner submitted that there was delay of about 4 years and no sufficient cause was shown to the Court but the Courts below without being satisfied with the delay, condoned the delay and allowed the limitation application and at the same time has restored the title suit to its original file. The learned counsel relied upon a decision of the Hon’ble Supreme Court 2011 (4) S.C.C. 363 Lanka Venkateswarlu Vs. State of Andhra Pradesh and submitted that ‘the discretion should be exercised systematically informed by reason. Liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when Court finds no justification for delay’. According to the learned counsel, the learned Court below merely on the basis of the application filed by the respondent condoned the delay of about 4 years. Therefore, the impugned Order is liable to be set aside. 4. On the other hand, the learned counsel for the respondent submitted that in fact along with the limitation application, medical certificates were produced before the Court below and after going through the limitation application, the lower Court passed the impugned order on being satisfied that there is sufficient explanation. The lenred counsel relied upon the decision of the Apex Court in the case of B.T. Purushothama Rai Vs. K.G. Uthaya 2011 (14) S.C.C. 86 submitted that ‘the purpose of the Limitation Act is not to destroy rights. It is founded on public policy. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse‘. 5. It is founded on public policy. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse‘. 5. It appears that both parties were heard on 21.09.2012 by this Court and an order was passed to the effect that “without going into the intricacies of the matter and the rival contentions raised therein, this Court deems fit and proper to dispose of this application without interfering with the order impugned”. However, while passing this order, this Court directed the plaintiff opposite party No.1 to pay a cost of Rs.2500/- to the petitioner within 2 weeks from the date of the said order. It appears that there was some delay in payment of the cost. It is submitted that the cost have been deposited in the Court below. It further appears that when the cost was not paid to the petitioner, the petitioner filed M.J.C. application for recall of the order dated 21.09.2012 and considering the contentions of the parties that the cost was not paid within the time, the order dated 21.09.2012 was recalled. Thereafter, this application has been listed again for admission. 6. Now, therefore, the fact remains that once this Court heard the parties and found that the impugned order needs no interference in revisional jurisdiction. The consequently direction / order was to pay the cost of Rs.2500/- to the petitioner. It is admitted fact that now the said cost has also been deposited. However, there is no order by this Court to deposit the same but whether on that ground alone, the impugned order is liable to be set aside, in my opinion, no. Further only because there is delay in depositing the cost, the question is whether the impugned order is set aside or can it be said that the impugned order is against the law or the impugned order passed by the Court below is contrary to the settled principle of law. In my opinion, this is only technical ground and the order dated 21.09.2012 although has been recalled subsequently on technical ground, it will not affect the merit of the case. 7. In my opinion, this is only technical ground and the order dated 21.09.2012 although has been recalled subsequently on technical ground, it will not affect the merit of the case. 7. So far merit is concerned, from perusal of the order of the Court below, it appears that the Court below was satisfied that there was sufficient ground for condoning the delay. Only argument advanced by the petitioner is that the Court blow has not properly considered each and every aspect of the matter, i.e., the documents produced by the petitioner along with the limitation application. According to the lenred counsel, there is no explanation regarding the year 2007-08. As stated above, the sufficiency or otherwise of the cause for delay is a subjective satisfaction of the Court concerned. While sitting in revisional jurisdiction, this Court cannot re-appreciate the evidence and say that on the basis of the materials available on record, the Court could not have held that there is sufficient cause in view of the decision of the Hon’ble Supreme Court reported in 1998 (7) S.C.C. 123 (N. Balakrishnan Vs. M. Krishnamurthy) and case of B.T. Purushothama Rai (supra) in revisional jurisdiction the Court cannot interfere with the order accepting the explanation as sufficient cause, it is the result of positive exercise of discretion by the Court below. 8. So far the decision relied upon by the petitioner is concerned also in that case the Hon’ble Supreme Court has held that the Courts in this country including the Supreme Court adopted a liberal approach in considering the application for condoning the delay on the ground of sufficient cause under Section 5 of the Limitation Act. However, the concepts such as “liberal approach” “justice oriented approach” “substantial justice” cannot be employed to jectism the substantial law of limitation. Especially in cases where the Court concludes that there is no justification for the delay. While considering the application for condoning the delay under Section 5 of the Limitation Act, the Court do not enjoy unlimited unbridled discretionary powers. So far this position is concerned, it is settled law, there is no dispute. Now, therefore, the discretion has been exercised by the trial Court and in revisional jurisdiction, this Court cannot interfere the discretionary jurisdiction exercised by the trial Court. So far this position is concerned, it is settled law, there is no dispute. Now, therefore, the discretion has been exercised by the trial Court and in revisional jurisdiction, this Court cannot interfere the discretionary jurisdiction exercised by the trial Court. Admittedly, the opposite party filed doctor’s certificate regarding his illness, the trial Court on the basis of the said documents held that there is sufficient cause for delay, this Court in revisional jurisdiction, therefore, cannot interfere with the same by taking another view even if it is possible on the basis of materials. 9. In the result, I find no merit in revision application. Accordingly, this revision application is dismissed.