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2015 DIGILAW 209 (CHH)

Bajrang Lal Agrawal v. State Of Chhattisgarh

2015-08-11

ASHOK KUMAR PANDA, R.L.JHAWAR

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Order : 1. Power confirmed under Section 11 of the C.G. Madhyastham Adhikaran Adhiniyam 1983 (hereinafter shall be referred to as the Adhiniyam 1983), a bench comprising of Chairman Justice R.L. Jhawar and Judicial Member Ashok Kumar Panda, has been constituted under section 9 of the Adhiniyam 1983, to hear and decide the above mentioned MJC. 2. This order shall govern disposal of application filed by the applicant, who was petitioner in Reference Petition No. 82/2005 titled as M/s. Bajrang Lal Agrawal Vs. PWD and others, for condonation of delay in filing application for restoration of reference petition No. 82/2005 to its original number. 3. Briefly stated facts of the case are that the applicant had filed a Reference Petition under Section 7 of the Adhiniyam 1983 against the Non-applicants, which was numbered as Reference Petition No. 82/2005. This Reference Petition was fixed on 10-01-2013 for hearing. Despite several calls for hearing, none were present to represent the petitioner, consequently, vide order dated 10-01-2013 the Reference Petition came to be dismissed in default for want of prosecution. 4. On 20-01-2014 the applicant moved an application for restoration of the above mentioned Reference Petition to its original number. Admittedly the application for restoration being barred by limitation, an application has been filed for condonation of delay in filing the application for restoration. 5. The non-applicants have opposed the prayer sought by the applicant, by filing reply to the application. 6. Arguments heard and perused the record. 7. The learned counsel for the applicant has submitted that the applicant was not aware of the order of dismissal as the counsel who was representing the applicant was also not aware of the development of the case. He further argued that, due to inadvertent and bonafide mistake, counsel for the applicant did not appear on the date of hearing. It was a mistake of the counsel for which the litigant should not be put to suffer. The applicant has a just claim and, therefore, the matter should be adjudicated on merits. He further submitted that delay has occasioned for sufficient reason. Therefore, the delay which though appears to be inordinate may be condone. In support of his argument he placed reliance on the observation made by the Hon'ble Apex court in Ramnath Sao alias Ramnath Sahu & others Vs. Gobardhan Sao & others, AIR 1979 SC 1191 ). 8. He further submitted that delay has occasioned for sufficient reason. Therefore, the delay which though appears to be inordinate may be condone. In support of his argument he placed reliance on the observation made by the Hon'ble Apex court in Ramnath Sao alias Ramnath Sahu & others Vs. Gobardhan Sao & others, AIR 1979 SC 1191 ). 8. Per contra, learned counsel appearing for the non applicants submitted that ij1fact, the applicant has not stated any reason for the delay in filing application. Inadvprtent and bonafide reason are vague terms. The applicant has not come up to the court for seeking relief with clean hands. Therefore the application deserves to be rejected. 9. Upon perusal of the order sheets of the Reference Petition No. 82/2005 it goes to show that the case was fixed on 01-01-2013. On this date none were present for the petitioner, however, the case was not dismissed in default for want of prosecution in the interest of justice and the case was again fixed for argument on limitation on 10-01-2013. On this date neither the petitioner nor his counsel were present and consequently an order was made to dismiss the case in default of appearance. 10. Upon examination of the application for condonation of delay it is found that the applicant has averred that the applicant was unaware of the dismissal of case and it came to his knowledge for the first time when he contacted his counsel in the month of December 2013. The applicant has no where stated that, from January 2013 till January 2014 why he did not make any enquiry regarding status of his case. No reason has been stated, as to why, the counsel representing the petitioner did not enquire about the status of the case on that period. It is simply averred that the counsel informed that unfortunately due to inadvertent and bonafide mistake counsel could not give appearance on 10-01-2013. The parties are required to state the facts of mistake and on the basis of pleadings of the fact the court or tribunal will determine as to whether the reason or cause shown by the parties comes within the ambit of inadvertent and bonafide mistake or not? Simply saying that mistake was in advertent and bonafide without assigning reason thereof does not constitute a "sufficient reason". 11. Simply saying that mistake was in advertent and bonafide without assigning reason thereof does not constitute a "sufficient reason". 11. The applicant has further stated that upon enquiry from the office it was revealed that claim case has been dismissed on 10-01-2013 but, the applicant has not stated as to how and when he made an enquiry from the office. 12. In Ramnath Sao alias Ramnath Sahu & others Vs. Gobardhan Sao & other, AIR 1979 SC 1191 parties were rustic and illiterate villagers who belong to different families, different villages within different police stations, they were abstain from filing application under order 22 rule 9 of CPC within the prescribed period of limitation. In this case the reason was clearly explained, under these circumstances the Hon'ble Supreme Court observed that :- The expression 'sufficient cause' within the meaning of S. 5 of the Act or O. 22, R. 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party. In a particular case whether explanation furnished would constitute 'sufficient cause' or not will be dependant upon facts of each case. There can not be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the Court should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter. Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. 13. Upon reading of the above observation it is clear that while construing the provision of section 5 of the Limitation Act liberal view should be adopted if, following essential facts emerge :- l. When no negligence or inaction or want of bona fide is imputable to party. 2. Explanation should be furnished by the party to constitute "sufficient cause". 3. If the explanation is furnished then the court should not proceed with the tendency of finding fault with the cause shown and reject the petition. 4. The courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. 14. It would be pertinent to mention here that, infact the applicant has not furnished any explanation as to how he was prevented from moving an application for restoration within the prescribed period of limitation. It has already been stated above that the applicant has simply stated that he was not aware of the dismissal of the case and the counsel did not appear, on the date of hearing due to inadvertent and bonafide reason, which is not sufficient to arrive at a conclusion that, how the mistake was bonafide and inadvertent. The applicant is under an obligation to show that, as to for what reason, he was not represented on the date of hearing? Whether he made an enquiry regarding his case, immediately after the date of hearing? The applicant is under an obligation to show that, as to for what reason, he was not represented on the date of hearing? Whether he made an enquiry regarding his case, immediately after the date of hearing? if not, reason thereof. Why, either he himself or his counsel remained silent and did not make any efforts to know the status of his case for such a long time i.e. from 11-01-2013 to 19-01-2014? The application filed by the applicant is lacking explanation on all these points which indicates his inaction and negligence. 15. In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, (1995) 3 SCC 351 the Hon'ble Apex court has observed that expression "sufficient cause" is elastic enough to courts to apply law in a meaning full manner which served ends of justice. The Hon'ble Supreme Court has further observed that delay not be condoned as a matter of course on ground that dismissal would cause injury to public interest when delay is due to lethargy or utter negligence of its officer. 16. It is settled position of law that condonation of delay is a matter of discretion of the court. Section 5 of the limitation act does not say that such discretion may be exercised only if the delay is within a certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion. Sometimes delay of shortest range may be un-condonable due to want of acceptable explanation, whereas in certain other cases, delay of very long range can be condoned as the explanation thereof is satisfactory. 17. The reference petition was dismissed in default for want of prosecution under the provision of Order 9 Rule 8 of the Civil Procedure Code. As per the limitation prescribed under Article 122 of the Limitation Act the applicant was required to file an application for restoration of the reference petition within 30 days' from the date of its dismissal. In this case the reason shown by the applicant for causing delay in filing the application are not found satisfactory and does not constitute "sufficient cause" to invoke the discretionary power vested with this tribunal, so as to condone the delay. 18. In this case the reason shown by the applicant for causing delay in filing the application are not found satisfactory and does not constitute "sufficient cause" to invoke the discretionary power vested with this tribunal, so as to condone the delay. 18. In view of the above facts and circumstances, we are of the view that, the applicant has utterly failed to show "sufficient cause" due to which he was prevented from making an application within prescribed period of limitation. Since there is no "sufficient cause" to condone the delay in filing application for restoration, the application filed by the applicant deserves to be rejected and hereby rejected accordingly. 19. Parties shall bear their own cost of this MJC.