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2014 DIGILAW 1170 (HP)

Sherry Gupta v. Neelam Thakur

2014-08-29

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Petitioners herein were plaintiffs No. 4, 5 and 6 in Civil Suit No. 39-S/10 of 1998, which has been ordered to be dismissed by learned District Judge, Shimla vide order dated 9.9.2002, under Order 17 Rule 3 of the Code of Civil Procedure on their failure to produce evidence despite number of opportunities granted for the purpose. 2. Against the order dated 9.9.2002, the petitioners are in appeal before this Court. The appeal is time barred, hence this application for condonation of delay as occurred in filing the appeal. 3. The explanation as set forth in the application for condonation of delay of more than seven years reads as follows:- "2. That as a matter of fact so far as the present appellants are concerned they learnt about the dismissal of the suit in the second week of February 2009 when Appellant No. 2, Smt. Ginny Bal, happened to be in Shimla and incidentally out of curiosity she visited the suit property at Mashobra and to her utter surprise she should found some developmental activities going on at the site. At that time it struck to her that the Appellants and their deceased mother Smt. Krishna Garg had filed a civil suit with respect to the suit property and thereafter she immediately contacted the proforma Respondent No. 11 to find out the fate of the case. However, the response of Proforma Respondent No. 11 was very evasive and totally unsatisfactory in this regard which prompted the Appellant No. 2 to find out the fate of their case. The Appellant No. 2 thereafter contacted Shri Dheeraj Kanwar, Advocate, District Courts, Shimla on 9.2.2009. On further inquiries made by her and Shri Dheeraj Kanwar, Advocate, Shimla it was revealed to her that the said civil suit had been dismissed on 9.2.2002 for want of prosecution. Immediately, the Appellant No. 2 applied for certified copy of the judgment through Shri Dheeraj Kanwar, Advocate on 9.2.2009 which was supplied to him on 10.2.2009. As a matter of fact, the relations between the appellants on the one hand Proforma Respondent No. 11 on the other hand are not very cordial. All along the appellants were being given the impression by Proforma Respondent No. 11 that he is diligently prosecuting the civil suit. As a matter of fact, the relations between the appellants on the one hand Proforma Respondent No. 11 on the other hand are not very cordial. All along the appellants were being given the impression by Proforma Respondent No. 11 that he is diligently prosecuting the civil suit. It may be pertinent to mention here that after the death of the mother of the Appellants and Proforma Respondent No. 11 late Smt. Krishna Garg w/o late Shri Yash Pal Garg, who died on 20.11.2004, the relations between the appellants and Proforma Respondent No. 11 have become more strained. Not only this, on further queries made by the Appellants in this behalf from Proforma Respondent No. 12 Smt. Kalawati, who is an aged lady of 85 years, they were shocked to learn that she too has been kept in dark by Proforma Respondent No. 11 about the fate of the case. She too is not aware that the said civil suit has been dismissed way back on 9.9.2002. The Proforma Respondent No. 11 never informed the appellants or their deceased mother about the fate of the case........" 4. In response to the application the stand taken by the respondents is that after institution of the suit, the same came to be listed as many as 35 times and on all the dates, the petitioners were represented by learned counsel. They have not even taken steps on all the dates. It is after settlement of issues, the suit remained listed on eight occasions for taking steps by the petitioners-plaintiffs to summon the witnesses, but of no avail. On 9.9.2002 when the suit was listed for recording plaintiffs' evidence, an application under Order 17 Rule 1 CPC was filed for adjournment of the suit to some other date instead of producing the evidence. The trial Court, however, not inclined to adjourn the suit and dismissed the application and also the suit, for want of prosecution. It has, therefore, been denied that one of the petitioners Ginny Bal came to know about the dismissal of the suit in the second week of February, 2009. The petitioners-plaintiffs rather were well aware of the dismissal of the suit prior to that. 5. In rejoinder, the petitioners-plaintiffs have denied, the contents of the reply being wrong and reiterated their case as set out in the application. 6. The petitioners-plaintiffs rather were well aware of the dismissal of the suit prior to that. 5. In rejoinder, the petitioners-plaintiffs have denied, the contents of the reply being wrong and reiterated their case as set out in the application. 6. On the pleadings of the parties, the following issues were framed on 3.11.2001: 1. Whether the appellants had sufficient cause for not preferring the appeal within the time prescribed by law? OPA 2. Relief. 7. The parties were put to trial on these issues. The petitioners-plaintiffs have examined AW-1 Mr. Dheeraj Kanwar, Advocate. Petitioner-plaintiff Ginny Bal has also stepped into the witness box as AW-2. On the other hand, the respondents-defendants have examined Shri Sohan Lal respondent No. 5, as RW-1. The zimini orders RW-1/A (Colly.), copy of plaint Ex. RW-2/B and copy of written statement Ex. RW-2/C have also been tendered in evidence by the respondents. 8. On behalf of the petitioners-plaintiffs, Shri B.C. Negi, Advocate, learned counsel has argued that from the record sufficient cause as required for condonation of delay occurred in filing the appeal stands disclosed as according to Mr. Negi, it is the plaintiff Vikas Paul, who has been pursuing the suit in the trial Court on behalf of the plaintiff, however, he never apprised the petitioners-plaintiffs about the dismissal of the suit on 9.9.2002. The explanation as set out in the application, according to Mr. Negi, is absolutely bonafide and genuine. It has, therefore, been urged that while construing the explanation so set out liberally the delay as occurred in filing the appeal may be condoned. 9. On the other hand, Mr. Satyen Vaidya, learned counsel representing the respondents-defendants has strenuously, contended that the present is a case of inordinate delay. Mr. Vaidya has fairly submitted that the delay howsoever long can be condoned in case the conduct of the party seeking condonation thereof is not doubtful and the explanation set forth found to be reasonable and plausible. As per the recent trend of law, it has been pointed out that in case the delay is not inordinate and short, the approach should be liberal, however, when it is inordinate and long delay, the Court must insist for strict proof of the explanation set out for condonation thereof. 10. As per the recent trend of law, it has been pointed out that in case the delay is not inordinate and short, the approach should be liberal, however, when it is inordinate and long delay, the Court must insist for strict proof of the explanation set out for condonation thereof. 10. Taking into consideration the rival submissions and also the evidence on record, it has to be seen whether the petitioners-plaintiffs have succeeded in discharging the onus on them to explain the delay of more than seven years occurred in filing the main appeal. 11. Before adverting to the given facts and circumstances and also the evidence as has come on record, it is deemed appropriate to make reference to the legal principles laid down in various judicial pronouncements. The apex Court in Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 , has held that though a liberal and justice-oriented approach is required to be adopted while considering an application under Section 5 of the Limitation Act, however, expression 'sufficient cause' would largely depend upon the bonafide nature of the explanation. Relevant portion of this judgment reads as follows:- "23. What needs to be emphasized is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." 12. The apex Court in a recent judgment in Esha Bhattacharjee Vs. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." 12. The apex Court in a recent judgment in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649 , while discussing the entire law, has laid down the following principles to be taken into consideration at the time of consideration of an application of this nature:- "21.1. There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. 21.3. Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:- 22.1. An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4. The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters." 13. In N. Balakrishnan Vs. 22.4. The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters." 13. In N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123 , the apex Court has held that in a case of delay there is always lapse on the part of the party seeking condonation thereof and the prayer for condonation of delay should not be disallowed only on the basis of such lapse and rather in case the explanation as set forth is not mala fide or the part of the dilatory strategy, the delay should be condoned. 14. The apex Court in P.K. Ramachandran Vs. State of Kerala and Another, (1997) 7 SCC 556 , has held that law of limitation may harshly affect a particular party, but it has to be applied with all rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The High Court of Rajasthan has also held in Union of India (UOI) Vs. Brij Lal Prabhu Dayal and Others, AIR 1999 Raj 216 , that a party seeking condonation of delay must place before Court facts constituting 'sufficient cause', failing which the delay cannot be condoned. 15. In the context of expression 'sufficient cause', the apex Court has held in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, (1987) 2 SCC 107 , that expression 'sufficient cause' is adequately elastic to enable the Courts to apply the law in a meaning full manner, which subserves the ends of justice. 16. It is, therefore, to be seen from the legal principles settled in various judicial pronouncements discussed hereinabove that the parties seeking condonation of delay, must show sufficient cause and the Court seized of the matter to construe the expression sufficient cause liberally i.e. if the parties seeking the condonation of delay is able to show with the help of plausible and reasonable explanation leading to cause delay in filing the plaint, petition or appeal, the delay should be condoned. 17. Here is a case where the petitioners were plaintiffs in the main suit along with other persons i.e. their deceased mother Krishna Garg and their brother Vikas Paul Garg, proforma respondent No. 11 herein. 17. Here is a case where the petitioners were plaintiffs in the main suit along with other persons i.e. their deceased mother Krishna Garg and their brother Vikas Paul Garg, proforma respondent No. 11 herein. Certified copies of the zimini orders Ex.RW-1/A reveal that on each and every date of hearing they were being represented by learned counsel engaged by them to conduct the proceedings in the suit on their behalf. The plaint Ex. RW-2/B reveals that AW-2, Ginny Bal, who is one of the petitioners-plaintiffs, has also signed the same. It is also established from the record that after settlement of the issue in the suit on 18.3.2000, the same came to be listed on several occasion till 9.9.2002 for recording plaintiffs' evidence. During this period ranging in about two years, petitioners-plaintiffs have failed to take steps for summoning the witnesses sought to be examined by them. On 9.9.2002 an application under Order 17 rule 1 CPC was filed for adjournment of the suit to some other date. When the plaintiffs, despite availing number of opportunities, failed to produce the evidence, granting of an adjournment for recording the evidence on their behalf to some other date would have nothing but merely a misplaced sympathy, having no place under the law. The trial Court, therefore, has rightly dismissed the suit for want of prosecution on that date. 18. The present is not a case of short delay and rather a case of inordinate delay because this application has been filed on 25.2.2009 after a period of more than seven years. Now the question arises that the explanation as set out in the application for condonation of delay is plausible or constitute sufficient cause. The answer to this poser, in all fairness and also in the ends of justice, would be in negative for the reason that it cannot be believed by any stretch of imagination that either of the petitioners-plaintiffs had no knowledge of the dismissal of the suit on 9.9.2002. 19. There is also nothing to believe that it is the proforma respondent No. 11 Vikas Paul Garg alone, who had been pursuing the suit and imparting instructions to learned counsel representing the petitioners. 19. There is also nothing to believe that it is the proforma respondent No. 11 Vikas Paul Garg alone, who had been pursuing the suit and imparting instructions to learned counsel representing the petitioners. Had it been so, the petitioners-plaintiffs would have examined him or he himself would have stepped into the witness box to state that it is he, who had been imparting the instructions to learned counsel on behalf of the petitioners-plaintiffs. The bald assertion in this regard in the petition and also in the statement of AW-2 cannot be believed as gospel truth. The so called visit of the petitioners-plaintiffs Ginny Bal in February 2009 finds support only from her own statement. The story that she on coming to know about the construction activities in progress on the spot came to District Court and asked AW-1 Dheeraj Kanwar, Advocate to inquire about the status of the suit seems to be not plausible. 20. No doubt, the certified copy of the order dated 9.9.2002 under challenge in the main appeal reveals that the same was applied on 9.2.2009 and supplied by the copying agency on the next day i.e. 10.2.2009. Mr. Dheeraj Kanwar, Advocate, while in the witness-box as AW-1 tells us that he made the application for supply of certified copy of the order passed on 9.2.2009, which was collected by him on the very next day and handed over to petitioner-plaintiff Ginny Bal. Ginny Bal, however, when cross-examined has stated that Mr. Dheeraj Kanwar, Advocate could trace out the status of the case after about two months of her visit to him. This is again highly doubtful that the petitioner-plaintiff Ginny Bal and other plaintiffs were not in the knowledge of the dismissal of the suit prior to its status disclosed to them by Mr. Dheeraj Kanwar, Advocate for the reason that Ms. Ginny Bal has admitted in her cross-examination that she was informed by her brother proforma respondent No. 11, after about 11/2 years of death of her mother about the dismissal of the suit. Admittedly, her mother Krishna Garg has expired in November, 2004, meaning thereby that Ms. Ginny Bal had acquired knowledge of the dismissal of the suit somewhere in the year 2005-06. Admittedly, her mother Krishna Garg has expired in November, 2004, meaning thereby that Ms. Ginny Bal had acquired knowledge of the dismissal of the suit somewhere in the year 2005-06. Therefore, the petitioners-plaintiffs have not come to the Court with clean hands and rather in suppression of such facts, invented a story of coming to know about the dismissal of the suit in February, 2009. 21. The present, therefore, is a case of an inordinate delay having occurred in filing the appeal in this Court qua which the explanation as set forth is neither plausible nor reasonable and rather misleading and a dilatory tactics raised with the motive to gain the sympathy of the Court. On the other hand, a valuable right has accrued in favour of the respondents-defendants on dismissal of the suit and expiry of the time prescribed for filing the appeal, which can not be taken away that too on the grounds, which are neither plausible nor reasonable and rather concocted one. 22. The present, therefore, is a case where the petitioners-plaintiffs have miserably failed to show sufficient cause for condonation of delay of more than seven years as occurred in filing the appeal, the same therefore, cannot be condoned. The application is accordingly dismissed. Consequently, the appeal also stands dismissed.