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2014 DIGILAW 230 (HP)

Ratti Ram v. Chet Singh

2014-03-21

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral) CMP(M) No. 1618 of 2012 This application has been preferred by the applicant/ appellant under Section 5 of the Limitation Act for condonation of delay of two years and seven months in filing of the appeal. The applicant/ appellant has made the following averments in support of his application: “That the judgment in the appeal filed by the appellant/applicant was passed by the Ld. Additional District Judge, Bilaspur on 26.11.2009, whereafter the copy of judgment was supplied to the learned counsel representing the appellant/applicant on 4.12.2009. Thereafter, the intimation was sent to the appellant/applicant by the Ld. Counsel on 15.6.2009.The applicant is working as mason being out of station to earn his livelihood, did not receive the intimation. It is only on 17.07.2010 when the appellant/applicant made enquiries with regard to the fate of his appeal from the Ld. Counsel, thereafter he came to know for the first time of the decision of the appeal. Immediately thereafter, the appellant/applicant visited Shimla on 27.7.2010. That the counsel advised the applicant to bring the certified copy of the judgment dated 26.11.2009. That on 2.8.2010 the counsel intimated the applicant to bring the certified copy of the trial court judgment, but the applicant did not receive the intimation as the applicant had gone to Una in respect of treatment of his son with the vaid and started earning his livelihood. That on 23.6.2011 the counsel again written the letter by registered post. The copy of the same is attached herewith as Annexure A-1. That the applicant did not receive the letter as the applicant was at Hamirpur in respect of the treatment of his son. The copy of treatment receipt is attached herewith as Annexure A-2. Thereafter, the applicant remained mentally upset in respect of the treatment of his son did not filed the appeal. It was only in the first week of September, 2012 applicant came with the certified copy of the judgment along with other record of his case. Immediately thereafter, the appeal was got prepared with promptitude and without further delay, there is delay of about 2 years and seven months in filing of the appeal.” 2.Upon notice, the respondent No.1 filed reply to this application and alleged that the applicant/appellant in fact has concocted false story since he is usually residing on the address given by him in the memorandum of parties. It has been further alleged that the story as has been invented in order to make out a case against the delay condoned by hoodwinking the Court by narrating false facts before the Court. It is alleged that there is no explanation whatsoever between 27.7.2010 till the filing of the appeal. 3.When the case was listed before the Court on 28.2.2014, this Court passed the following order: “CMP(M) NO.1618 of 2012 Let supplementary affidavit be filed by the applicant explaining the delay, particularly from the period 27th July, 2010 till the filing of the appeal. This will be done within a period of three weeks. List on 21.3.2014.” In terms of the aforesaid order, the applicant/appellant has filed a supplementary affidavit to the following effect: “2.That the deponent did not receive the intimation sent by the Ld. Counsel dated 15.6.2010. It was only on 17.07.2010 when the deponent made enquiries with regard to the fate of his appeal from the Ld. Counsel, thereafter he came to know for the first time of the decision of the appeal. Immediately thereafter, the deponent visited the office at Bilaspur and only received the copy of judgment under appeal and was intimated that your case file is not traceable as the matter has been decided in the year of 2009. That thereafter deponent visited Shimla on 27.7.2010. That the counsel advised the applicant to bring the certified copy of the judgment dated 26.11.2009 and complete case file. That on 2.8.2010 the counsel intimated the applicant to bring the certified copy of the trial court judgment, but the applicant did not received the intimation as the applicant had gone to Una in respect of treatment of his son with the vaid and started earning his livelihood. 3. It is submitted that with effect from 2.8.2010 till first week of September, 2012 applicant remained out of station at Una, Hamirpur, Digal, Amritsar and Jalandhar in respect of treatment of his son and was mentally upset. Apart from that the deponent was not having sufficient means to earn his livelihood and even to pay the balance fee of the counsel at Bilaspur as well at Shimla. Apart from that the deponent was not having sufficient means to earn his livelihood and even to pay the balance fee of the counsel at Bilaspur as well at Shimla. That the deponent has spent all his saving in respect of treatment of his son during 2.8.2010 till first week of September, 2012.” 4.The question which arises for consideration is whether the applicant/appellant has shown sufficient cause for not filing the appeal within the prescribed period of limitation. What would be sufficient cause, would vary from case to case. The Hon’ble Supreme Court in Parimal vs. Veena Alias Bharti (2011) 3 SCC 545 has construed the expression “sufficient cause” in the following terms: “13.”Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361 , Lonand Grampanchayat v. Ramgiri Gosavi, AIR 1968 SC 222 , Surinder Singh Sibia v. Vijay Kumar Sood (1992) 1 SCC 70 : AIR 1992 SC 1540 and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn., (2010) 5 SCC 459 ). 14. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 , this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. The only difference between a “good cause” and “sufficient cause” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”. (See also Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156, Manindra Land and Building Corpn. Ltd. vs. Bhutnath Banerjee, AIR 1964 SC 1336 and Mata Din v. A. Narayanan (1969) 2 SCC 770 : AIR 1970 SC 1953 .) 15. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94 : AIR 2000 SC 2306 , Madanlal v. Shyamlal, (2002) 1 SCC 535 : AIR 2002 SC 100 , Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd. , (2002) 3 SCC 156 : AIR 2002 SC 451 , Ram Nath Sao v. Gobardhan Sao (2002) 3 SCC 195 : AIR 2002 SC 1201 , Kaushalya Devi v. Prem Chand, (2005) 10 SCC 127 , Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95 and Reena Sadh v. Anjana Enterprises, (2008) 12 SCC 589 : AIR 2008 SC 2054 ". 5.Keeping in mind the object of doing substantial justice to all the parties concerned and leaving aside the technicalities, this Court has to take into consideration whether the applicant/appellant in this case has shown sufficient cause whereby it can be said that he has not acted in a negligent manner or there was a want of bona fide on his part in view of the peculiar facts and circumstances of this case or the applicant/appellant could be said to have “not acted diligently” or “remained inactive”. 6.After going through the facts as set out in the application coupled with the supplementary affidavit which have been extracted in extenso above, it is absolutely clear that the applicant/appellant has not been able to make out any sufficient cause for not filing the appeal within the prescribed period of limitation as he has acted in a negligent manner, there was no bona fide on his part and he further cannot be said to have acted diligently. While it can safely be held that he remained “inactive”. Despite being put to caution and caveat by this Court. On 28.2.2014, there is no explanation worth the name on the part of the applicant/appellant as to what action he has taken for filing of the appeal between 27.7.2010 till the ultimate filing of the appeal on 27.9.2012 which is after a period of about two years and two months. Even the period from the date of judgment of the learned lower Appellate Court on 26.11.2009 till the copy of the judgment was prepared on 4.12.2009 upto 27.7.2010 is construed liberally and it complete ignored even then as already held hereinabove, there is no explanation worth the name for not filing the appeal for the period from 27.7.2010 upto 27.9.2012 when the appeal ultimately came to be filed. 7. Thus, since the applicant/appellant has failed to show “sufficient cause” whereby the delay in filing the appeal can be condoned. This Court is left with no other option but to dismiss the application. Accordingly, the application is dismissed. RSA No. 549 of 2012 In view of dismissal of the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal, this appeal cannot be held to be legally and validly constituted and therefore, dismissed as such leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.