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2018 DIGILAW 1949 (HP)

Bhag Chand v. Neelima Jaskaran Barar

2018-11-06

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - By medium of this application, the applicant has sought condonation of 1 year, 4 months and 26 days delay that has crept up in filing the appeal. 2. It has been averred that the impugned judgment and decree was passed by the learned first appellate Court on 30.09.2016 and the applicant through his counsel applied for a certified copy thereof on 03.10.2016 as 1st and 2nd October, 2016 were holidays. However, the applicant could not file the appeal within the prescribed period due to the reason that after the decision by the learned first appellate Court, the applicant remained occupied in taking care of his brother-in-law, who remained seriously ill at Jaipur (Rajasthan) and ultimately died in June, 2017. The applicant thereafter on the assurance given by one Pankaj Gupta son of Bansi Dhar handed over the case file to him in July, 2017 as he had been contesting other associated cases regarding the same land in his individual capacity. The applicant was assured by Shri Pankaj Gupta that he would pursue the appeal before this Court and, thus, remained under bonafide belief that Shri Pankaj Gupta was, in fact, pursuing the appeal. However, when the applicant in the 2nd week of January, 2018 enquired from Shri Pankaj Gupta regarding the status of the appeal, it was then he learnt that Shri Pankaj Gupta had, in fact, not preferred any appeal. The applicant then contacted his counsel at Solan and requested him to prefer an appeal. He informed that there was winter vacation in the High Court and the Court will be re-opening in the last week of February, 2018. He accordingly in the third week of February, 2018 got the appeal drafted and prepared and the same was immediately filed on the re-opening of the Court on 26.02.2018. It was on account of this fact that the delay in filing of the appeal occurred and it was neither intentional nor deliberate and should, therefore, be condoned. 3. The respondents contested the application by filing a detailed reply, wherein it has been stated that 1st & 2nd October, 2016 were working days and the applicant could have conveniently applied for grant of certified copy as was done by them. 3. The respondents contested the application by filing a detailed reply, wherein it has been stated that 1st & 2nd October, 2016 were working days and the applicant could have conveniently applied for grant of certified copy as was done by them. It is further averred that the applicant has concocted story to seek condonation of delay on the ground that he had to take care of his brother-in-law whereas no particulars of his brother-in-law or his treatment have been placed on record. It has been further averred that the story regarding the handing over of the case to Shri Pankaj Gupta is also false or else the applicant should have filed the affidavit of Shri Pankaj Gupta to this effect. Moreover, no such appeal has, in fact, been filed by Shri Pankaj Gupta in this Court as no notice thereof has been received by the respondents. If such story was true, the applicant could have executed power of attorney in favour of Shri Pankaj Gupta so as to enable him to file the appeal before this Court. Lastly, it is averred that the applicant himself is negligent in pursuing the appeal or else there would have been no reason why he did not bother for over six months to enquire from Shri Pankaj Gupta, regarding the fate of the appeal. 4. The applicant has filed rejoinder to the reply by reiterating the averments made in the application while denying those as have been made by the respondents. I have heard learned counsel for the parties and have gone through the records of the case. 5. 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. 6. 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. 6. 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. 7. 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. 8. Adverting to the facts of the case, even as per the admitted case of the applicant, it would be noticed that the certified copy of the judgment and decree of the learned first appellate Court was made available to him on 13.01.2017 and, therefore, admittedly had time up to 10.04.2017 to file the appeal. According to the applicant, he could not file the appeal as he remained occupied in taking care of his brother-in-law who remained seriously ill at Jaipur (Rajasthan) and ultimately died on June, 2017. Notably, who was this brother-in-law, what was his name and what was the nature of ailment for which he was being treated have not been mentioned even in the rejoinder, though a specific objection to the same was taken by the respondents in the reply. 9. That apart, the applicant has not been able to establish the involvement of Shri Pankaj Gupta. 9. That apart, the applicant has not been able to establish the involvement of Shri Pankaj Gupta. Not only this, how Shri Pankaj Gupta had any role to play in this appeal or in any of the other two appeals as alleged by the appellant is not forthcoming, more particularly, when admittedly he is not a party in any of the appeals. 10. There is substance in the objection of the respondents that in case Pankaj Gupta was, in fact, pursuing the case as alleged, then he could have only pursued the same on the basis of the power of attorney or else the right to file the claim is personal and only available to the appellant who would be required to execute power of attorney and thereafter sign the appeal as also file an affidavit in support of the application. 11. In addition thereto, the appellant would also be required to pay the remuneration of the Advocate and also pay the Court Fee etc. but surprisingly the application is conspicuously silent on all these aspects. Therefore, the Court has no hesitation to conclude that the applicant in order to seek condonation of delay has weaved a cock and bull story. 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 upon his 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.