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2018 DIGILAW 1266 (HP)

Leela Devi @ Leelawati v. Gargi Devi

2018-07-10

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - By medium of this application, the applicant has sought condonation of one year, 10 months and 2 days delay that has crept up in filing of the appeal. 2. It is averred that the applicant is a simple village and rustic lady and during the pendency of the appeal before the learned first Appellate Court, she had engaged a counsel, who advised her not to come on each and every hearing of the case and as such the applicant remained in her house and did not come to know about the dismissal of the appeal by the learned first Appellate Court vide its judgment and decree dated 30.03.2016, until June, 2017, when her counsel informed her about the same. 3. It is further averred that the applicant was surprised to receive notice from the revenue agency in the month of June, 2017 when they alongwith some police and court officials came on the spot and informed that they have to demarcate the suit land. Even that time, the applicant remained under bonafide belief that the field staff had come to the spot to demarcate her land as the application submitted by her was pending disposal. 4. Thereafter, she contacted her counsel at Jogindernagar, who inspected the records of the learned first Appellate Court as well as the Executing Court and, thereafter, the applicant applied for the copy of the judgment of the learned first Appellate Court in the second week of November, 2017. Thereafter, the appeal was eventually filed on 04.04.2018. 5. The respondent has contested the application by filing reply, wherein, she prayed for dismissal of the application on the ground that no sufficient cause had been shown by the applicant whereby the delay could be condoned. I have heard learned counsel for the parties and have gone through the records of the case. 6. It is more than settled that in matters of the instant kind the Courts normally are required to adopt liberal approach specially while dealing with the application for condonation of delay as ordinarily a litigant does not stand to benefit by lodging an appeal late and refusal to condone delay can result in an meritorious matter being thrown out at the very threshold and the cause of justice being defeated. It is clearly settled that the approach in such matter should not be a pandentic but the doctrine that is to be kept in mind is that the matter has to be dealt in a rational commonsense, pragmatic manner and cause of substantial justice deserves to be preferred over the technical consideration. 7. However, at the same time, the Court is also required to see whether there are lack of bona fides imputable to a party seeking condonation of delay. It has also to take into consideration the conduct, behaviour and attitude of a party relating to its inaction or negligence while approaching the Court. It has further to be ensured that the concept of liberal approach has to be encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play because there is increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in an non-challant manner, which requires to be curbed, of course, within the legal parameters. This legal position is succinctly expounded in the judgment of the Hon''ble Supreme Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy , (2013) 12 SCC 649 , wherein while interpreting the provisions of Section 5 of the Limitation Act regarding condonation of delay the principles applicable thereto were summarised as follows:- (i) There should be a liberal, pragmatic, justice oriented, nonpedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: - (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters. 8. In view of the aforesaid exposition of law, it is crystal clear that in seeking condonation of delay in filing of the appeal, it is incumbent on the party seeking such condonation to show sufficient cause, which prevented the appellant from filing the appeal within the statutory period. 9. Adverting to the facts of the case, even as per the admitted case set up by the appellant, she was already informed about the dismissal of the appeal in June, 2017, yet she took no steps to ensure that the instant appeal is filed without any further delay. 10. Not only this, even the certified copy of the judgment of the learned first Appellate Court was applied only on 20.11.2017 and delivered to her on 19.01.2018. As observed above, the appeal eventually came to be filed on 04.04.2018. 11. In addition to the above, it would be noticed that the other ground taken by the applicant for not filing the appeal within the prescribed period of limitation is that the counsel representing her not informed about the decision till June, 2017. However, such averments and allegations have not been supported by her counsel by filing an affidavit. 12. 11. In addition to the above, it would be noticed that the other ground taken by the applicant for not filing the appeal within the prescribed period of limitation is that the counsel representing her not informed about the decision till June, 2017. However, such averments and allegations have not been supported by her counsel by filing an affidavit. 12. Thus, in this background, this Court has no hesitation to conclude that the application not only lacks bonafide but it is based on the false averments. There has been gross inaction or negligence on the part of the applicant in filing the appeal within the prescribed period of limitation and the explanation being offered is concocted. The conduct and attitude of the applicant only reflects her inaction, negligence and lackadaisical attitude. 13. Therefore, the applicant has failed to carve out sufficient cause for condonation of delay, accordingly the application is dismissed, leaving the parties to bear their own costs. 14. Since, the application for condonation of delay has been dismissed, the Regular Second Appeal is also dismissed accordingly.