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2014 DIGILAW 81 (HP)

Asha Devi v. Shyam Sunder alias Sham

2014-01-10

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This revision petition is directed against the order dated 18.10.2012 passed by District Judge, Kullu in CMP No.71/12 titled Asha Devi and others Vs. Shyam Sunder and others. 2. “Key facts” necessary for the adjudication of this petition are that petitioners feeling aggrieved by the judgment and decree dated 6.8.2007 passed by the Civil Judge, Kullu in Civil Suit No.38 of 2005 preferred Civil Appeal before the District Judge, Kullu. The appeal was barred by limitation. An application under section 5 of the Limitation Act for condonation of delay in filing the appeal was filed alongwith appeal. The application was dismissed in default on 16.2.2011. Petitioners had engaged one Sh. Hemant Kumar Thakur, Advocate as their counsel. They were told by him that their presence was not required. He had also assured them that he would inform them about the result of the case. They were informed about the next date of hearing, i.e. 29.9.2011. They visited the court on 29.9.2011. However, the case was not called. They approached the Reader of the Court and on inquiry they came to know on 25.11.2011 that the application under section 5 of the Limitation Act was already dismissed on 16.2.2011. The certified copy of order dated 16.2.2011 was applied on 29.11.2011. It was supplied to them on 12.12.2011. Thereafter, one of the petitioners Asha Devi fell ill on 18.1.2012 and remained ill till 24.1.2012. On 25.1.2012, petitioners contacted their counsel at Kullu. He informed that civil courts were closed and shall reopen on 21.2.2012. Thereafter, an application under order 9 rule 3 read with section 151 and under order 41 rule 19 of the Code of Civil Procedure was filed for restoration of application alongwith application under section 5 of the Limitation Act. According to them, there was no deliberate or intentional delay to file the application. 2. The application was opposed by the respondents. According to them, no sufficient cause has been shown for the condonation of delay and restoration of applications. District Judge dismissed the application on 18.10.2012. Hence, the present petition. 3. Mr. Y.P. Sood has vehemently argued that there is sufficient cause for condonation of delay in filing the application. He then contended that litigant cannot be made to suffer due to mistake of the counsel. He lastly contended that one of the petitioners Asha Devi had fallen ill. 4. Mr. Hence, the present petition. 3. Mr. Y.P. Sood has vehemently argued that there is sufficient cause for condonation of delay in filing the application. He then contended that litigant cannot be made to suffer due to mistake of the counsel. He lastly contended that one of the petitioners Asha Devi had fallen ill. 4. Mr. Rajnish K. Lall appearing vice counsel on behalf of contesting respondents has supported the order passed by the District Judge. 5. Mr. Dheeraj K. Vashishta appearing on behalf of proforma respondent No.4 has supported the contention of Mr. Y.P. Sood. 6. I have heard the learned counsel for the parties and have perused the pleadings carefully. 7. What emerges from the facts enumerated hereinabove is that the application was listed on 16.2.2011. It was dismissed on 16.2.2011 itself. Certified copy was applied on 29.11.2011. It was supplied on 12.12.2011. Though the application was dismissed on 16.2.2011, however, the petitioners visited the court only on 29.9.2011 and thereafter on 25.11.2011. Since the application was dismissed itself on 16.2.2011, next date of hearing could not be fixed as 29.9.2011. The copy has been supplied to the petitioner on 12.12.2011. 7. According to Mr. Y.P. Sood, one of the petitioners fell ill on 18.1.2012 and remained ill till 24.1.2012. Petitioners have not placed on record medical certificate before the learned District Judge. However, fact of the matter is that application has been filed only on 21.2.2012. The delay has not been explained satisfactorily. It is true that the party should not suffer due to mistake of the counsel; however, it cannot be practice only to seek condonation of delay. 8. According to the petitioners, they were told by their counsel about the next date of hearing, i.e. 29.9.2011. Petitioners have not filed the affidavit of the counsel alongwith the application to substantiate their plea that the next date of hearing was 29.9.2011. Petitioners have not made any effort even on 29.9.2011 to ascertain the status of the case. The plea that they approached the Reader only on 25.11.2011 cannot be believed. The application was dismissed at 3.50 P.M. in default on 16.2.2011. Petitioners, at least, could file an application on 12.12.2011 when the copy was supplied to them. Petitioners have not made any effort even on 29.9.2011 to ascertain the status of the case. The plea that they approached the Reader only on 25.11.2011 cannot be believed. The application was dismissed at 3.50 P.M. in default on 16.2.2011. Petitioners, at least, could file an application on 12.12.2011 when the copy was supplied to them. It is settled law that the court ought to be liberal while considering the applications under section 5 of the Limitation Act, but at the same time the valuable rights accruing to the opposite party cannot be ignored. 9. Their Lordships of the Hon’ble Supreme Court in Oriental Aroma Chemical Industries Limited versus Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 have held that liberal approach in condoning delay of short duration and the strict approach in cases of inordinate delay should be applied. Their Lordships have held as under: “14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.” 10. Their Lordships of the Hon’ble Supreme Court in Lanka Venkateswarlu (dead) by LRS versus State of Andhra Pradesh and others, (2011) 4 SCC 363 have held that the liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when court finds no justification for delay. Their Lordships have held as under: “19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors. ( (1987) 2 SCC 107 ). 23. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:- "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation." "26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 26. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. 28. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. 28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. 29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.” 11. The same principles have been reiterated by their Lordships of the Hon’ble Supreme Court in Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 as under: “15. The expression sufficient cause used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. 23. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. 23. What needs to be emphasised 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.” 12. Mr. Y.P. Sood has placed strong reliance on Chaman Lal vs. Asha Rani and others, Latest HLJ 2000 (HP) 685. In this case, revision petition was directed against the order dated 9.6.1998 passed by the learned District Judge, Bilaspur whereby the applications under order 22, rule 3 and under order 1 rule 10 of the Code of Civil Procedure and under section 5 of the Limitation Act for condoning the delay in filing the application have been allowed. Petitioners challenged this order by filing revision petition. The main contention was that the applications have been allowed without affording an opportunity to lead evidence. The plea raised by the petitioners before the District Judge while opposing the applications was that the appeal has abated as these were barred by limitation. No sufficient cause was shown for condonation of delay and the applicants were not the only legal heirs. It is in these circumstances this court has held that the District Judge ought to have framed the issues which have arisen in controversy. 13. In the case in hand, plea raised by the petitioner is not substantiated. The application has rightly been rejected on the basis of pleadings of the parties. In case the petitioners had filed the affidavit of the counsel, who had appeared on their behalf, he could be cross-examined by the respondents. In case the petitioners had also filed the medical certificate of Asha Kumri, the doctor could be cross-examined by the respondents. 14. The application has rightly been rejected on the basis of pleadings of the parties. In case the petitioners had filed the affidavit of the counsel, who had appeared on their behalf, he could be cross-examined by the respondents. In case the petitioners had also filed the medical certificate of Asha Kumri, the doctor could be cross-examined by the respondents. 14. Learned Single Judge of Patna High Court in Birendra Nath Singh vs. Santa Devi and others, AIR 1992 Patna 146 has held that leading of oral evidence while adjudicating an application under order 41 rule 3 (2) of the Code of Civil Procedure or section 5 of the Limitation Act is not permissible. The question of limitation has to be decided on the basis of affidavits filed on record. Learned Single Judge has held as under: 10. Leading of oral evidence while adjudicating an application under Order XIL R.3(2) of the Code of Civil procedure or S. 5 of the Limitation Act is not permissible. The question of limitation is being decided on the basis of the affidavits. The plea of leading oral evidence in my view, in the peculiar facts and circumstances, was correctly not allowed in-as much as it was open for the petitioner first to have filed the affidavits of the persons named by him in the limitation petition or in any view of the matter no sooner the rejoinder was filed and not after the close of arguments on 6-12-1990 and while giving reply on 7-12-1990. 15. Division Bench of Madras High Court in Managing Director, Thanthal Periyar Transport Corpn, Villupuram, v. K.C. Karthiyayini, AIR 1995 Madras 102 has held that the litigant who comes to court after the prescribed period of limitation is bound to satisfy the court that he has sufficient cause for the delay. 16. Since the petitioners have not placed on record the affidavit of the learned counsel, who had appeared on their behalf, judgments in Lajpat Rai and others vs. State of Punjab and others, AIR 1981 SC 1401 , M/s Tiger Hardware and Tools Limited and others v. Union of India and others, AIR 1984 SC 40 , Lanka Venkateswarlu (Dead) by LRs vs. State of Andhra Pradesh and others, (2011) 4 SCC 363 , Ram Chander vs. H.P. State Small Industries and Export Corpn., Latest HLJ 2009 (HP) 608 are not applicable to the facts of the present case. 17. Accordingly, in view of the discussion and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending applications, if any, also stands disposed of. No costs.