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2015 DIGILAW 374 (AP)

Allala Bhagavanth Rao v. Garvandula Vijayalaxmi

2015-06-10

M.SATYANARAYANA MURTHY

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Judgment: A.S.M.P. No.1435 of 2012, under Order XLI Rule 3-A of the Code of Civil Procedure, 1908 (for short, ‘the C.P.C.’) read with Section 5 of the Limitation Act, 1963 (for short, ‘the Act’) is filed to condone delay of 168 days in preferring the Appeal against the decree and judgment dated 13.09.2011 passed in Original Suit No.13 of 2006 by the Senior Civil Judge at Jagtial, Karimnagar District, on the 1st ground that the petitioner herein has suffered from Chikungunya and viral fever and that his family members were totally immobile, thereby could not contact the counsel within time; the 2nd ground urged by the petitioner is that due to his ill-health, he had incurred lot of expenditure for his medical treatment and due to his inability to meet any further expenditure did not engage the counsel to prefer an Appeal. Hence, the delay of 168 days occurred in preferring the Appeal. Learned counsel for the petitioner while reiterating the grounds urged in the petition contended that the sufficient cause must be construed liberally without adopting any pedantic approach and when the petitioner was unable to move from the house due to ill-health it is a sufficient ground to condone the delay and prayed to allow the petition. Per contra, learned counsel for the respondents would contend that the cause shown by the petitioner is not sufficient cause, as he failed to explain each and every days delay and even did not furnish the details of commencement of sickness and recovery and prayed to dismiss the petition. Considering rival contentions and perusing the material available on record, the sole point that arises for consideration is: Whether the petitioner was prevented by a cause, which is beyond his reasonable control? If so, the delay of 168 days, in preferring the Appeal, be condoned? POINT: The first and foremost ground urged for condonation of delay, in Para 7 of the affidavit, is that the petitioner suffered from Chikungunya and viral fever and unable to move from the house; therefore, he could not contact his counsel. But, nowhere in the affidavit, the dates of commencement of his sickness and recovery disclosed. Except making a bald allegation, no medical certificate was produced to substantiate his contention that he had suffered from Chikungunya or viral fever for a prolonged period of 168 days. But, nowhere in the affidavit, the dates of commencement of his sickness and recovery disclosed. Except making a bald allegation, no medical certificate was produced to substantiate his contention that he had suffered from Chikungunya or viral fever for a prolonged period of 168 days. In the absence of any details of his sickness, more particularly, the dates and medical certificate from the competent doctor, I am unable to accept the contention that there is sufficient cause to condone the delay. The 2nd ground urged for condonation of delay is that the petitioner had no means to engage counsel to prefer an Appeal, as he had already incurred huge amount for medical treatment. Lack of funds to file an appeal engaging the counsel is not a ground to condone the delay as held by the Full Bench of Punjab and Haryana High Court in Mahant Gurmukh Singh Vs. The State of Punjab and Others, wherein it was held as follows: “Mere non-availability of funds for obtaining the requisite certified copy is, in our opinion, no ground for the extension of time under Section 5 of the Limitation Act.” In the facts of the above judgment, the Appeal could not be filed as the petitioner therein was unable to spend Rs.200/- for obtaining certified copies and thereby caused delay in preferring an Appeal but the Full Bench of Punjab and Haryana High Court did not accept the cause shown by the petitioner for condonation of delay and dismissed the petition. In another judgment of the Apex Court in Banarsi Das and Others Vs. The State of Uttar Pradesh and Others, it was held as follows in Para 6: “This petition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave. The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No.1402 of 1955) is that they had to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that is not a sufficient ground for condoning the delay.” Article 39-A of the Constitution of India is incorporated by 42nd amendment Act 1976 to provide free legal aid by suitable legislation. In our opinion, that is not a sufficient ground for condoning the delay.” Article 39-A of the Constitution of India is incorporated by 42nd amendment Act 1976 to provide free legal aid by suitable legislation. The object behind this amendment is that no person shall be deprived of access to justice on account of poverty and to provide equal access to Courts for redressal. By virtue of Act 39-A, Constitution of India adopted a legislation popularly known as Legal Services Authority Act to provide free legal aid. If for any reason, the petitioner had no means to pay the Court fee and engage counsel, nothing prevented him to approach the Legal Services Authority, seeking legal aid claiming exemption from payment of Court fee, to appoint a legal aid counsel, however subject to his eligibility, under Section 12 of the Legal Services Authority Act. In view of the law laid down by the Apex Court and Full Bench of Punjab and Haryana High Court and availability of legal assistance under the Legal Services Authority Act, the 2nd ground urged by the petitioner for condonation of delay is unsustainable and the cause shown by the petitioner cannot be accepted. The word ‘sufficient cause’ is not defined either in the Limitation Act or in the C.P.C.; the reason appears to be that there is no straight jacket formula to decide whether the cause shown for condonation of delay is sufficient cause or not. Depending on the facts and circumstances of each case, the Court can exercise discretion and decide the sufficient cause. Sufficient cause shall be construed liberally without adopting any pedantic approach. It cannot be stretched to frustrate the very intention of legislature in specifying the period for filing appeal or petition etc. In Lanka Venkateswarlu (Died) by L.Rs. Vs. State of A.P. and others, the Apex Court heavily laid on the Courts when to allow the petitions, though no sufficient cause is made out, and ruled as follows: “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” cannot be employed to jettison the substantial law of limitation, especially in cases where the Court concludes that there is no justification for the delay. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot 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. 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 cannot and should not form the basis of exercising discretionary powers.” In fact, the petitioner did not make out any sufficient cause except making a bald unsubstantiated allegation in the affidavit. If such lame excuses for condoning the delay are accepted as sufficient causes, virtually denuding or jettisoning the substantive law of limitation. In view of the law declared by the Apex Court basing on the concept of real justice, substantial justice the Courts cannot allow petitions under Section 5 of Limitation Act, when no sufficient cause is made out. Therefore, basing on lame excuse or unsubstantiated cause, it is difficult to condone the delay, liberally construing the word sufficient cause. Hence, I find no ground to condone the delay of 168 days in filing the Appeal against the decree and judgment dated 13.09.2011, passed in O.S. No.13 of 2006 by the learned Senior Civil Judge at Jagtial. Accordingly, A.S.M.P. No.1435 of 2012 is dismissed. Consequently, the Appeal Suit (SR) No.8071 of 2012 stands rejected. In consequence, miscellaneous petitions, if any, pending in this Appeal, shall stand closed. No order as to costs.