Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 532 (RAJ)

Jai Lal v. Chandro Devi

2015-02-26

P.K.LOHRA

body2015
Hon'ble LOHRA, J.—Appellants have laid this appeal under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 (for short, 'CPC') against the impugned order dated 29th of January, 2015 passed by the Motor Accident Claims Tribunal, Hanumangarh (for short, 'learned Tribunal'), whereby the learned Tribunal has dismissed the application of the appellants under Order 9 Rule 13 CPC for setting aside award dated 21st of August 2002. 2. In the application under Order 9 Rule 13 CPC, it is, inter-alia, averred by the appellants that brother-in-law of first respondent lodged a false FIR against appellant No.1 at Police Station Pilibanga for offences under Sections 279 and 304A IPC, in which after investigation police filed charge-sheet before the Court of learned Judicial Magistrate First Class, Pilibanga. It is further stated in the application that on the basis of false FIR, respondents also filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 against the appellants and after receipt of notices of the claim petition, appellants handed over papers to their counsel who was representing the first appellant in criminal case, and he assured them to contest the claim case also on their behalf. It is further alleged in the application that the advocate assured the appellants that as and when their presence would be required in the claim case, requisite information would be divulged to them by him. Ultimately, the criminal case is decided on 3rd of March, 1998 and the first appellant is acquitted for the offences under Sections 279 and 304-A IPC. As per the version of the appellants in the application, the counsel informed that acquittal in criminal case would facilitate disposal of the claim petition also in their favour and henceforth they are not required to attend the proceedings in the claim case before the learned Tribunal. In sum and substance, for ex-parte award dated 21st October, 2002, appellants have blamed the advocate, who was entrusted brief on their behalf. Along with the application for setting aside ex-parte award, a separate application is also filed for condonation of delay under Section 5 of the Limitation Act with the same facts. 3. The respondents contested both the applications by filing separate replies to both of them. In the return, respondents repudiated the theory of callousness and negligence attributed to the counsel by the appellants. 3. The respondents contested both the applications by filing separate replies to both of them. In the return, respondents repudiated the theory of callousness and negligence attributed to the counsel by the appellants. Respondents have also pleaded in the reply that application is designed just to thwart or prolong the execution proceedings. While joining issue with the appellants on their application under Section 5 of the Limitation Act, respondents have pleaded that the so-called cause assigned for condonation of delay is false and concocted. Making serious objection against the inordinate delay of more than 12 years, the respondents specifically averred in the reply that on the face of it, it is unbelievable that a litigant would not contact his lawyer for more than a decade after entrusting brief. With these averments, respondents prayed for rejection of the application for condonation of delay and consequential rejection of application under Order 9 Rule 13 CPC. 4. The learned Tribunal, after hearing the rival submissions, by the impugned order, rejected both the applications precisely for the reason that appellants have miserably failed to make out a case for condonation of delay for more than 12 years. The learned Tribunal has found that appellants have not been able to make out a case for condonation of delay inasmuch as the cause is neither good, nor sufficient within the four corners of Section 5 of the Limitation Act. While declining prayer of the appellants for condonation of delay, the learned Court below has also rejected the application for setting aside ex-parte award. 5. Mr. Rakesh Matoria, learned counsel for the appellants, submits that appellants have laid application for setting aside ex-parte award immediately on receipt of notice for execution proceedings, and, as such, the application was within limitation from the date of knowledge about the ex-parte award. He, therefore, submits that the learned Court below has seriously erred in rejecting the twin applications laid by the appellants. Mr. Matoria would contend that the learned Tribunal, while passing the impugned order, has not examined the averments contained in both the applications and has simply turned down the request of the appellants on technical grounds. Learned counsel also submits that the appellants cannot be made to suffer for the fault and lapses on the part of the advocate representing their cause. Mr. Learned counsel also submits that the appellants cannot be made to suffer for the fault and lapses on the part of the advocate representing their cause. Mr. Matoria, learned counsel for the appellants, has strenuously urged that the impugned order is vitiated in law inasmuch as the learned Tribunal has allowed substantial justice to suffer at the cost of technicalities. Lastly, Mr. Matoria would contend that if appellants have been able to make out a case for their nonappearance, on the appointed date when ex-parte proceedings were taken, they cannot be made to suffer for their subsequent absence and non-participation in the proceedings, and, as a matter of fact, subsequent nonappearance ought to have been overlooked and condoned by the learned Court below. 6. Per contra, learned counsel for the respondents submits that the learned Tribunal has rightly turned down the request of the appellants for setting aside ex-parte award, and therefore, no interference in the impugned order is warranted. Learned counsel submits that in an appeal under Order 43 Rule 1 CPC, scope of judicial review is very much limited and a discretionary order passed by the learned Court below while exercising the same judiciously is not liable to be interfered with. Learned counsel for the respondents would contend that while considering application under Section 5 of the Limitation Act, sufficient cause is to be construed liberally but it does not mean that a litigant, who is totally callous and negligent, be allowed latitude to take advantage of its total apathy and sheer negligence. Lastly, learned counsel has urged that application for setting aside ex-parte award is filed by the appellants just to thwart execution proceedings, and therefore, no indulgence can be granted to the appellants. 7. I have learned counsel for the parties and perused the impugned order. 8. The case in hand is a glaring example of callousness and apathy of a litigant. I am really aghast that appellants remained indolent for the claim petition for more than 14 years, as according to their own admission after decision of the criminal case in the year 1998 they have not made any endeavour to contact their lawyer, who was representing their cause before the learned Tribunal. I am really aghast that appellants remained indolent for the claim petition for more than 14 years, as according to their own admission after decision of the criminal case in the year 1998 they have not made any endeavour to contact their lawyer, who was representing their cause before the learned Tribunal. On the face of it, the averments contained in the application under Order 9 Rule 13 CPC as well as under Section 5 of the Limitation Act are concocted and not inspiring confidence. Appellants have made endeavour for setting aside ex-parte award dated 21st October, 2002 after a lapse of 12 years without pleading any cause, much less sufficient cause. 9. Well, it is true that a litigant should not suffer on account of lapses of a lawyer but at the same time it is not expected of a litigant to castigate his lawyer for its own lapses. There is no specific fact pleaded in the applications that the appellants have initiated proceedings against the advocate, to whom they entrusted the brief, for his alleged delinquency. In these circumstances, the grounds, set out in the application for setting aside ex-parte award as well as for condonation of delay, are per-se concocted and fabricated. In common parlance, it is unbelievable that a litigant would not inquire about the progress of case from his lawyer for more than a decade. Therefore, in totality, in my opinion, the appellants have ex-facie made a blatant attempt to camouflage their serious omissions in pursuing the litigation by making their counsel scapegoat. In this view of the matter, I am not impressed by the contentions of the learned counsel for the appellants to interfere with the impugned order. 10. Now, adverting to construction of sufficient cause within the four corners of Section 5 of the Limitation Act, suffice it to observe that there remains no quarrel that sufficient cause is to be construed liberally to farther the interest of justice. It is true that Court is required to adopt a pragmatic approach in construing sufficient cause rather than purely idealistic and pedantic approach, but, at the same time, in the guise of sufficient cause, a litigant cannot be allowed to take premium of its total callousness and culpable negligence. Courts are not meant for encouraging unscrupulous litigants by acceding to their request for condonation of delay on wholly flimsy pretext for mere askance. 11. Courts are not meant for encouraging unscrupulous litigants by acceding to their request for condonation of delay on wholly flimsy pretext for mere askance. 11. Hon'ble Supreme Court in case of Basawaraj & Anr. vs. Special Land Acquisition Officer ((2013) 14 SCC 81), while construing the expression “sufficient cause” and examining the intent of statute of limitation, has held as under: 9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. vs. Bhutnath Banerjee, Mata Din vs. A. Narayanan, Parimal vs. Veena and Maniben Devraj Shah vs. Municipal Corpn. of Brihan Mumbai.) 10. In Arjun Singh vs. Mohindra Kumar this Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”. 11. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”. 11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal vs. Shyamlal and Ram Nath Sao vs. Gobardhan Sao.) 12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute. 13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury’s Laws of England, Vol. 28, p. 266: “605. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury’s Laws of England, Vol. 28, p. 266: “605. Policy of the Limitation Acts.—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence or laches. (See Popat and Kotecha Property vs. SBI Staff Assn., Rajender Singh vs. Santa Singh and Pundlik Jalam Patil vs. Jalgaon Medium Project.) 12. While construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for laying an appeal gives rise a right in favour of the decree holder to treat the decree as binding between parties. In other words, on expiry of prescribed period of limitation, the decree holder acquires a benefit under law of limitation to construe the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The second consideration, which is to be kept in mind by the Court, is that if sufficient cause for excusing delay is shown by the party, the Court in its discretion may condone the delay. It is needless to emphasize here that even after sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act. 13. Therefore, viewed from any angle, in my opinion, I am not persuaded to interfere with the impugned order passed by the learned Court below. Resultantly, appeal lacks in merit and the same is accordingly, dismissed.