Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1049 (ALL)

VISHUNDEO v. HANS NATH

2016-03-28

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the parties and perused the records. 2. It is admitted fact that sole appellant of Second Appeal No. 1599/1991 had died in 10.10.1994 and its substitution application was filed on 3.2.1998. The application condonation of delay in moving substitution application and for setting aside the abatement of appeal was not moved. 3. On date of listing none was present to press the appeal so the Second Appeal No. 1599/1991 was dismissed in default of appellant side on 19.9.2011. Its restoration application No. 325637/2014 alongwith delay condonation application No. 325634/2014 was moved on 26.9.2011 in this Court, which is supported by affidavit of son of deceased appellant. 4. It is written in affidavit of applicant that earlier counsel had elevated to High Court in year 2000, but no reason was given as to why new counsel was not engaged. It is not mentioned in affidavit that applicants had no knowledge of elevation of earlier counsel. In fact no reason was given as to why substitution application was not moved in time after death of sole appellant on 10.10.1994. Again it is also not mentioned in affidavit as to why restoration application was not moved within period of limitation. 5. Therefore, there appears no sufficient ground for accepting the reason for condonation of delay in moving substitution application or for setting aside abatement of appeal or for condonation of delay in moving restoration application. The second appeal had already abated automatically about 16 years before its dismissal 19.9.2011. 6. In Popat and Kotech Property v. State Bank of India Staff Association, (2005) 7 SCC 510 , Hon’ble Apex Court had held as under : “7. The period of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken writ diligence and to prevent oppression. The statute i.e. the Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute bar discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has, with great propriety, been termed a statute of repose, peace and justice. The statute bar discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal. (Also see France B. Martins v. Mafalda Maria Teresa Rodrigues; (1999) 6 SCC 627 ). 8. Bar of limitation does not obstruct the execution. It bars the remedy. (See V. Subbf Rao v. Secy. to Government Panchayat Raj and Rural Development, Government of A.P.; (1996)7 SCC 626 ). 9. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So, a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time (See N.Balakrishnan v. M. Krishnamurthy; (1998) 7 SCC 123 ).” 7. In Damodaran Pillai and others v. South Indian Bank Ltd., AIR 2005 SC 3460 , Hon’ble Apex Court had held as under : “14. It is also trite that the Civil Court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the Court cannot invoke its inherent power. 15. It is also trite that the Civil Court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the Court cannot invoke its inherent power. 15. It is well-settled that when a power is to be exercised by a Civil Court under an express provision, the inherent power cannot be taken recourse to. “20. The principles underlying the provisions prescribing limitation are based on public policy aiming at justice, the principles of repose and peace and intended to induce claimants to be prompt in claiming relief. 21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation.” 8. This legal position is explicitly clear that the principles underlying provisions of limitation are based on public policy aiming that justice should be furnished to all the parties and hardship or injustice may be relevant consideration in applying the discretion for condoning the delay. But such hardship of both the parties should be considered. In condoning the delay beyond period of limitation provided by the statute there must be cogent and satisfactory reasons. Such reasons are lacking in present matter. 9. The application for condonation of delay has been moved by appellant under Section 5 of Limitation Act, 1963, which reads as under: “5. Extension of prescribed period in certain cases.—Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.” 10. There is period prescribed for initiation of every legal proceedings in Limitation Act, and such period may be extended in accordance with mandatory provisions of the Act. The said provisions of Section-5 make it explicitly clear and mandatory that an application for extension of prescribed period of limitation may be allowed only if the appellant or applicant satisfies the Courts that he had sufficient cause for not preferring the appeal or making the application within such period. The said provisions of Section-5 make it explicitly clear and mandatory that an application for extension of prescribed period of limitation may be allowed only if the appellant or applicant satisfies the Courts that he had sufficient cause for not preferring the appeal or making the application within such period. As discussed above, for deciding the matter of limitation not only the case of applicant/appellant should be considered, but the principles underlying the provisions the Act, which are based on public policy alongwith hardship and injustice to other party should also be considered. In the present matter, every consideration leads to inference against applicant-appellant. It has also been proved that applicant-appellant had failed to satisfy this Court that he had sufficient cause for moving the application for setting aside the abatement or for not moving the substitution application within period of limitation or moving restoration application; therefore under the provisions of Section 5 of Limitation Act his application should not be allowed. 11. In present case there is no sufficient ground for condoning the deliberate very long delay in moving restoration application. In absence of any reasonable or sufficient ground, the Delay Condonation Application No. 325634/2014 and Restoration Application No. 325637/2014 are rejected.