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2016 DIGILAW 1269 (HP)

Kamal Dev v. Ram Prakash

2016-07-04

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. CMP (M) No. 806/2015 Applicant has filed a Regular Second Appeal against the judgment and decree dated 21.9.2013 passed by the learned Additional District Judge (1), Mandi in Civil Appeal No. 65 of 2012. The Regular Second Appeal is barred by one year, six months and five days. The applicant has moved an application under section 5 of the Limitation Act for condonation of delay. According to the averments made in the application, respondent No.2 has filed an appeal against the judgment and decree dated 12.6.2012 bearing Civil Appeal No. 65/2012. Appellant Kamal Dev was added as proforma respondent No.2 in the cause title of Civil Appeal No. 65 of 2012 alongwith other legal heirs of late Sh. Thenu Ram. They were proceeded ex parte. Thereafter, a compromise deed was executed by respondent Nos. 1 and 2. Except respondent Nos. 1 and 2, i.e. Ram Prakash and Himmat Ram, none have signed the compromise deed. Thereafter, compromise decree was passed on 21.9.2013. He came to know on 10.3.2015 that respondent No.2 Himmat Ram has sold some portion of the suit land. He made inquiry about the decree passed by the learned trial court dated 1.6.2012. Thereafter, he came to know that matter has been compromised. He applied for the judgment and decree passed by the first appellate court on 6.4.2015. It was attested on 17.4.2015 and delivered to him on 5.5.2015. He collected his brief from the local counsel of the trial court on 10.6.2015 and thereafter on 21.6.2015 engaged a counsel for filing the present appeal. The delay in filing the appeal was neither intentional nor deliberate. 2. The application was contested. It is averred in the reply that the present applicant was proceeded ex parte as he has failed to appear despite service on 21.8.2006 in the trial court. Kamal Dev was also served before the first appellate court, however, no appearance was put in and he was proceeded ex parte. It is evident that the applicant has neither contested the civil suit nor appeal. The Court has gone through order dated 21.9.2013 whereby the suit filed by Sh. Ram Prakash was dismissed as withdrawn and the appeal was compromised as per compromise deed Ex.CA. Compromise deed Ex.CA and Tatima Ex.CB were ordered to be form part of decree. The Regular Second Appeal is barred by one year, six months and five days. The Court has gone through order dated 21.9.2013 whereby the suit filed by Sh. Ram Prakash was dismissed as withdrawn and the appeal was compromised as per compromise deed Ex.CA. Compromise deed Ex.CA and Tatima Ex.CB were ordered to be form part of decree. The Regular Second Appeal is barred by one year, six months and five days. It is not believable that the applicant did not know about the judgment and decree dated 1.6.2012 of the trial court and compromise decree dated 21.9.2013 rendered by the Additional District Judge (I), Mandi in Civil Appeal No. 65 of 2012. The applicant has slept over his rights for considerable long time and it cannot be believed that he came to know about the passing of decree at the time of suit land being sold by respondent No.2-Himmat Ram. The applicant has remained negligent in pursuing the case. A valuable right has accrued to the opposite party. 3. It is true that the Court ought to be very liberal while considering the applications under section 5 of the Limitation Act, but at the same time the valuable rights accruing to the opposite party cannot be ignored. The applicant has not assigned sufficient reasons for the condonation of delay. 4. Their Lordships of the Hon’ble Supreme Court in Oriental Aroma Chemical Industries Limited versus Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 have held that liberal approach in condoning delay of short duration and the strict approach in cases of inordinate delay should be applied. Their Lordships have held as under: “14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.” 5. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.” 5. Their Lordships of the Hon’ble Supreme Court in Lanka Venkateswarlu (dead) by LRS versus State of Andhra Pradesh and others, (2011) 4 SCC 363 have held that the liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when court finds no justification for delay. Their Lordships have held as under: “19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors. ( (1987) 2 SCC 107 ). 23. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:- "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation." "26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 26. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. 28. 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" can not 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. 29. 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 can not and should not form the basis of exercising discretionary powers.” 6. The same principles have been reiterated by their Lordships of the Hon’ble Supreme Court in Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 as under: “15. The expression sufficient cause used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. The expression sufficient cause used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. 23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.” 7. Accordingly, in view of the observation and discussion made hereinabove, there is no merit in the application and the same is dismissed. In view of the dismissal of CMP (M) No.806 of 2015, the present application stands disposed of.