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2018 DIGILAW 1988 (HP)

Chuhar Singh v. Rajinder Singh

2018-11-15

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - By medium of this application, the applicant has sought condonation of 4 years, 8 months and 16 days delay that has crept up in filing of the appeal. 2. It was averred that the applicant is 95 years old and had himself being pursuing the entire litigation and had also filed the suit out of which the judgment under challenge has arisen. The son of the applicant retired from the armed force on 30.09.2016 and returned to his native place. After settling down, he enquired about the properties and ongoing litigation whereafter the applicant informed that the suit which was filed by him for injunction and possession had been partly decreed and in the appeal the same had been affirmed. The execution proceedings filed by the applicant had been dismissed as satisfied. The son of the applicant thereafter consulted with the present Counsel at Shimla in the first week of January, 2018, whereafter the Counsel advised the applicant and his son to file an appeal before this Court. It was further advised that applicant should get the entire record of the case so as to prepare the appeal as the sufficient time had already elapsed after passing of the judgment and decree by the learned first appellate Court on 29.09.2013. It is claimed that the delay in filing of the appeal had occurred only on account of the old age of the applicant and his deteriorated health. 3. Respondents No. 1 to 5 contested the application by filing reply wherein preliminary objections that the application in the present form neither competent nor maintainable for the simple reason that the judgment and decree passed by the learned first appellate Court had attained finality as the present application had been filed after the expiry of 4 years 8 months and 16 days. It was further claimed that while filing the application, the applicant has concealed the material facts and the instant application has been filed as a counter blast to FIR No. 12 of 16, registered at Police Station, Nahan on 08.02.2016 on the complaint of Paramjeet, wife of respondent No.1, who was given beatings by the applicant and his sons and the grandsons. It was also averred that since the applicant does not disclose any sufficient cause for condoning the delay, therefore, the same deserves to be dismissed. It was also averred that since the applicant does not disclose any sufficient cause for condoning the delay, therefore, the same deserves to be dismissed. The preliminary objections were reiterated and elaborated in the reply on merits. 4. Respondents No. 8 to 12 have also contested the application by filing reply wherein it was averred that the appeal being grossly barred by limitation deserves to be dismissed, particularly, no sufficient cause for condoning the delay has been spelt out. The excuse coined for condonation of delay neither tenable nor believable. 5. The applicant has filed rejoinder to both the replies, reiterating the contents of the application while denying the averments as contained in the replies. 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 bonafides 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. (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. 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. 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. 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. As per the admitted case of the applicant himself, the execution qua the impugned judgment and decree stands dismissed as fully satisfied, that too, prior to the filing of the present application. If that be so, obviously, the filing of the present application is nothing but an after thought and clever devise to harass the opposite party. Even the old age of the applicant in the given circumstances cannot be held to be sufficient ground for condoning the delay because admittedly the instant appeal is now being pursued by his son Harbans Singh, who is the GPA of the appellant. If the GPA can pursue the instant application, there is no reason why be could not have pursued the other litigations. 10. Apart from above, power of attorney of Shri Harbans Singh as per the affidavit sworn by him, his age is 44 years and has shown his occupation as service, whereas, it is the other son of the applicant upon whose advise the present appeal and application for condonation of delay has been filed. Even that son, according to the applicant himself, retired from armed force on 30.9.2016 and returned to his native place, why then the appeal was not filed promptly and came to be filed only on 22.03.2018, is not at all forthcoming. If the applicant was serious in pursuing the appeal he could have conveniently executed power of attorney as being now done by him. Having failed to do so, the story now put-forth by the applicant only appears to be a cock and bull story and, therefore, cannot be accepted. 11. 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. 12. 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. 12. 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. 13. Since, the application for condonation of delay has been dismissed, the Regular Second Appeal is also dismissed accordingly.