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2017 DIGILAW 187 (UTT)

Rajni Sharma v. Rajendra Kumar

2017-03-17

UMESH CHANDRA DHYANI

body2017
ORDER : Umesh Chandra Dhyani, J. 1. By means of present writ petition, the petitioner seeks following relief, among others: "Set aside the judgment and order dated 24.01.2017 passed by the learned Additional District Judge, Vikas Nagar, Dehradun in Misc. Civil Appeal No. 20 of 2016 (Smt. Rajni Sharma v. Rajendra Prasad Verma) and the order dated 29.02.2016 passed by the learned Civil Judge, Senior Division, Vikas Nagar, District Dehradun in Misc. Case No. 19 of 2015, (Smt. Rajni Sharma v. Rajendra Prasad Verma)(Annexure Nos. 13 & 11 respectively)." When the ex parte decree was passed against the petitioner, she moved an application under Order 9, Rule 13, C.P.C. along with application under Section 5, Limitation Act. All these applications were dismissed by the Trial Court vide order dated 29.02.2016. The defendant-petitioner preferred a Misc. Civil Appeal, which too was dismissed by learned Additional District Judge, Vikas Nagar, Dehradun. Hence, present writ petition. 2. Learned counsel for the sole respondent objected such move of the petitioner by arguing that despite issuing notice and even after filing the written statement, the defendant-petitioner did not appear before the Trial Court on 13 dates fixed, from 21.08.2014 to 22.08.2015 and, therefore, when the petitioner or her counsel did not appear before the Trial Court, the Trial Court was compelled to pass an ex parte order/decree against her. Learned counsel for the sole respondent also submitted that the petitioner appeared before the Executing Court only when the notice of execution was served upon her. 3. In reply, learned counsel for the petitioner submitted that husband of the petitioner fell ill during the pendency of the Civil Suit. He was admitted in Mahant Indresh Hospital. Thumb of his left leg was amputated and, therefore, neither she nor her counsel could appear before the Trial Court. According to learned counsel for the petitioner, there was no mala fide on the part of the petitioner and she was prevented by sufficient cause from appearing when the suit was called on for hearing. 4. No doubt, the defendant had notice of the date of hearing. She appeared before the Trial Court and filed her written statement. She had sufficient time to appear and participate in the proceedings before the Court below. 4. No doubt, the defendant had notice of the date of hearing. She appeared before the Trial Court and filed her written statement. She had sufficient time to appear and participate in the proceedings before the Court below. It cannot be said that she was not aware of the date of hearing, enabling her to appear either in person or through her counsel, but, fact of the matter is that the condition of her husband was critical, thumb of his left leg was amputated. The husband of the petitioner died subsequently, as has been pointed out by learned counsel for the petitioner and, therefore, this Court is of the opinion that sufficient cause has been shown by her for her non-appearance before the Trial Court, till notice was sent to her in Execution proceedings. 5. Law is clear on the point that, as far as possible, any lis should be decided on merits provided one does not sleep over his/her legal rights. Let us see what are decisions of Hon'ble Apex Court in this regard. 6. Hon'ble Supreme Court in G. Ramagowda v. Special Land Acquisition Officer, AIR 1988 SC 897 and Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 has observed that the expression 'sufficient cause' in Section 5, Limitation Act 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 : (ATR 2009 SC (Supp) 695) that the expression 'sufficient cause' should be considered with pragmatism injustice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. 7. The expression 'sufficient cause' should, therefore, 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. 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 moreso 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. 8. After hearing learned counsel for the parties and having gone through the impugned orders, this Court is of the opinion that 'sufficient cause' has been shown by the petitioner for her absence before the court below. 9. In view of the aforesaid discussions, this Court thinks it fit to allow the application under Section 5 of the Limitation Act and as a consequence thereof, application under Order 9, Rule 13, C.P.C. also on payment of Rs. 10,000/- as costs to Sri Vikas Bahuguna, learned counsel for the respondent, to be paid within a week from today. Accordingly, the Writ Petition is allowed and the orders impugned dated 29.02.2016 and 24.01.2017 are set aside. It is hoped and expected that the Trial Court shall made an endeavour to expedite the proceedings of Original Suit No. 79 of 2010 without granting unnecessary adjournments to the parties.