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2015 DIGILAW 237 (UTT)

Ikbal Ahmad Ansari v. Matloob Hasan

2015-05-14

UMESH CHANDRA DHYANI

body2015
JUDGMENT : Umesh Chandra Dhyani, J. 1. By means of present Appeal from Order, the appellants seek to set aside the judgments and orders dated 22.10.2005 and 05.07.2008 passed by Addl. District Judge/1st FTC, Roorkee, District Haridwar in Civil Appeal No. 2/2001, Ikbal Ahmad v. Matloob Hasan & others and in Misc. Case No. 53/2005 Ikbal Ahmad v. Matloob Hasan & others and further to re-admit the aforesaid Civil Appeal. 2. The question, which arises for consideration of this Court, in the instant case is - whether an application for condoning delay under Section 5 of the Limitation Act, 1963 is a must or not? Further, whether in the absence of prayer for condoning delay, such delay may be condoned or not? It is an admitted case here that there was a delay of one day on behalf of the defendant-appellant in moving an application for setting aside the dismissal of appeal. The defendant (appellant herein) was the appellant before the first appellate court and, in his absence, a regular civil appeal was dismissed. The suit was decreed in favour of the plaintiff by the trial court. Aggrieved against the same, the defendant filed a civil appeal, which, as stated above, was dismissed in his default. He moved an application for setting aside the dismissal of appeal, but there was a delay of one day in moving such application. Although, he had stated in the application that he was suffering from diabetes and, therefore, he could not move such application in time, but there was no averment in the application for re-admission that one day's delay in filing the re-admission application be condoned. The first appellate court, therefore, held that in the absence of application under Section 5 of the Limitation Act, his appeal could not be readmitted. 3. Reliance is placed upon a decision of Hon'ble Supreme Court in Ragho Singh v. Mohan Singh & others, 2001 (9) SCC 717 , wherein it was observed: "6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs." 4. It will be apt to reproduce paras 16, 17 & 18 of a decision rendered by Hon'ble Supreme Court in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, (2003) 7 SCC 66 : "16. Furthermore, the Representation of the People Act provides for a complete machinery. The right of appeal conferred upon a suitor must be considered from that angle. When an order is passed under Section 98 of the Act, the same may be in terms of either sub-section (1) of Section 86 or otherwise. An appeal lies against a final order. An order passed under sub-section (1) of Section 86 is also final. It may be that in the event an appeal there from is allowed, the matter may be required to be sent back but that would not render an order passed there under as an interlocutory one. It does not take away the concept of the finality attached therewith. 17. Although, there is no direct decision on the point but it appears that this Court in Hari Shankar Jain v. Sonia Gandhi, (2001) 8 SCC 233 entertained an appeal under Section 116A from an order rejecting the Election Petition. 18. Learned counsel then urged that this special leave petition may be treated as an appeal under Section 116-A of the Act. An appeal is required to be filed within 30 days of the order and judgment of the Tribunal (High Court) and the power has been given to the Supreme Court to condone the delay in case of the appeal having been filed after 30 days. An appeal is required to be filed within 30 days of the order and judgment of the Tribunal (High Court) and the power has been given to the Supreme Court to condone the delay in case of the appeal having been filed after 30 days. In the present case no application for condonation of delay has been filed in terms of the proviso appended to subsection (2) of Section 116A of the Act. As the appeal would have otherwise been barred by limitation, we are not in a position to treat this appeal as an appeal under Section 116A of the Act. We are, therefore, of the opinion that the said special leave petition was not maintainable and leave under Article 136 of the Constitution of India was wrongly granted. It-is, accordingly, revoked. The special leave petition is dismissed." 5. Learned counsel for the appellant also placed reliance upon a decision of Hon'ble Delhi High Court in Universal Builders & Contractors v. Sheila Singh Uppal & others, (2009) 2 PLR (Delhi) 47, wherein a decision of Hon'ble Supreme Court in Devinder Pal Sehgal & another v. M/s. Partap Steel Rolling Mills Pvt. Ltd. & others, JT (2001) 10 SC 463 was referred. The Hon'ble Delhi High Court held as under: "8. In the case of Devinder Pal Sehgal & another v. M/s. Partap Steel Rolling Mills Pvt. Ltd. & others, JT 2001 (10) SC 463, Apex Court clearly laid down the above proposition. An oral prayer for condonation under Section 5 of the Limitation Act is sufficient. Formal application in writing is not necessary for granting relief under Section 5 of Limitation Act. Thus, the trial Court rightly condoned the delay in filing an application under Order 9 Rule 9 Civil Procedure Code even in the absence of any separate application under Section of Limitation Act." 6. It will be apt to reproduce para 15 of a decision of Hon'ble Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra & another, AIR 2014 SC 1745 in this regard, hereinbelow: "15. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Coequal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam." 7. In the instant case, neither the application for condonation of delay was moved by the appellant/defendant to re-admit the civil appeal, nor was there a single sentence in such application for condoning the delay. The appellant in the said application has only tried to justify the reasons for such delay that he was suffering from diabetes. This Court would, therefore, be laying a bad law if it is provided that a separate application under Section 5 of the Limitation Act indicating sufficient reasons is not required to condone the delay. 8. Hon'ble Supreme Court in G. Ramagowda v. Special Land Acquisition Officer, AIR 1988 SC 897 and Shakuntala Devi Jain v. Kuntal Kumari, AIR 1869 SC 575 has observed that the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. It has been held by Hon'ble Supreme Court in State (NCT of Delhi) v. Ahmed Jaan, 2008 (10) JT 179 that the expression 'sufficient cause' should be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. 9. The expression 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. Whether explanation furnished would constitute 'sufficient cause' or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. However, courts 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 lightly be 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, causing enormous loss and irreparable injury to the party against whom the lis terminates and defeating valuable right of such a party to have the decision on merits. The courts should strike balance between the resultant effect of the order it was going to pass upon the parties either way. The decision of Ram Nath Sao v. Gobardhan Sao, AIR 2002 SC 1201 may be referred to in this regard. 10. In the instant case, there is a delay of one day in filing re-admission application or in restoring the civil appeal. It is accordingly provided that if the defendant-appellant moves an application under Section 5 of the Limitation Act, 1963 for condoning such delay, the same shall be considered by the court below as per law. 11. 10. In the instant case, there is a delay of one day in filing re-admission application or in restoring the civil appeal. It is accordingly provided that if the defendant-appellant moves an application under Section 5 of the Limitation Act, 1963 for condoning such delay, the same shall be considered by the court below as per law. 11. Needless to say that if it is found by the court below that the appellant was prevented by sufficient cause to move the re-admission application, the same (i.e. application for delay condonation) shall be considered on humanitarian ground and according to law. The trial court, in that case, is directed to decide the re-admission application on merits. 12. Appeal from Order thus stands disposed of.