Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1435 (HP)

Ashwani Kumar v. Kehar Winge Agency

2015-10-08

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan. J, This Petition under Section 115 of the Code of Civil Procedure is directed against the order dated passed by learned District Judge, Hamirpur on 12.8.2015, whereby he condoned the delay of 27 days in filing of the appeal subject to payment of cost of Rs. 1000/- 2. It is vehemently contended by Sh. Ajay Sharma, learned counsel for the petitioner that the learned court below while condoning the delay has over stepped the jurisdiction vested in it. It is further contended that when the averments made in the application were false and unsubstantiated, then the court had no jurisdiction to condone the delay. 3. It would be noticed that while filing application for condonation of delay, petitioner had explained the same in the following manner: “2.That the applicant applied for copies of judgment and decree on 27.9.2014. The same was prepared and was delivered on 27.10.2014.” “3.Tht the applicant was out of station in connection with his work from 20.11.2014 to 29.11.2014 as such when he turned up on 29.11.2014 and contacted the present counsel then present appeal was prepared after withdrawal of court fees.” Reply to the aforesaid paras reads as under: “2.It is admitted that appeal has been filed against the judgment and decree passed by the trial court vide which the suit of the appellant was dismissed. Rest of the contents are denied for want of knowledge.” “3. Incorrect. The applicant/appellant was not out of station as alleged. Moreover, no proper document to prove this fact has been produced. The appeal has not been filed within time and the applicant/appellant is negligent and is not entitled to any discretionary relief under the said provision of law.” 4. It is evident from the reply that the case of the petitioner was only a case of denial and based on these pleadings, learned court below condoned the delay. 5. I see no illegality, infirmity or even perversity in the impugned order as the same was based on the pleadings and arguments of the parties. Now at this stage, it is not open for the petitioner to make out a case which had not been set up by him before the learned court below, after all this court is to adjudge the correctness of the order on the basis of the pleadings and other materials available before the court which passed the order. Now at this stage, it is not open for the petitioner to make out a case which had not been set up by him before the learned court below, after all this court is to adjudge the correctness of the order on the basis of the pleadings and other materials available before the court which passed the order. Moreover, no new ground can normally be permitted to be raised, that too in proceedings under Section 115 of CPC. 6. That apart, unless there is an inordinate delay or in other words, the delay is only of a short duration or few days, then the same calls for a liberal delineation. The principles applicable to an application for condonation of delay have been culled out by the Hon’ble Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & ors (2013) 12 SCC 649 , wherein after taking into consideration the entire case law on the subject it was held: “i) There should be a liberal, pragmatic, justiceoriented, 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. ii) 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. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) 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. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) 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. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) 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. ix) 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. x) 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. xi) 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. xii) 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. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. xiv) 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. xv) 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. xvi) 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. xvi) 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. xvii) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.” 7. In view of the aforesaid exposition of law coupled with the fact that there was a delay of short duration of only 27 days in filing of the appeal, I find no illegality, irregularity or perversity in the order passed by the learned court below and accordingly the petition being devoid of any merit is dismissed in limine.