Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2081 (HP)

Pawan Kumar v. Bhindu

2018-11-26

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Justice Tarlok Singh Chauhan, J. - By medium of this application, the applicant has sought condonation of five years and six months delay that has crept up in filing of the appeal. 2. It was averred that the applicants / appellants had engaged one Devinder Singh, Advocate, for filing the appeal before the learned first Appellate Court and the same stood filed on 26.05.2011 and it was decided on 23.11.2012 but the Advocate Devinder Singh constantly informed the applicants/appellants that the appeal is still pending adjudication before the learned first Appellate Court. It is only in January, 2017, when appellant No. 1 Pawan Kumar went to the Court, then it transpired that the appeal had already been dismissed way back on 23.11.2012. The appellants applied for the certified copy of the judgment on 05.01.2017 and got the same on the same day. Thereafter, he contacted the Counsel at Shimla for filing the appeal but the Counsel advised him to come in the last week of February, 2017 as the High Court was closed for winter vacation. Accordingly, the appellant came to Shimla in first week of March, 2017 and immediately thereafter has filed the instant appeal. 3. Respondent No. 1 has contested the application by filing reply wherein preliminary objection regarding there being no plausible reason has set out for condoning the delay. On merits, it was averred that since the applicants have failed to explain the delay of each day and has further failed to show the time and day when he contacted his Counsel, the application for condonation of delay is liable to be dismissed. I have heard learned counsel for the parties and have gone through the records of the case. 4. 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 pedantic 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. 5. 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, non-pedantic 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. 6. 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. 7. As per the contents of the application, the applicants have sought condonation of delay only on the ground that the Counsel did not inform them regarding the decision of the first appeal. In case the memo of parties is perused, it would be seen that all the applicants are residents of Mohalla Drobhi, Chamba Town, which probably may be at a stone''s throw from the Court complex. Why then for more than 5 years did the appellants/ applicants not confirm the status of the case? 8. Now, as regards, the question of the appellants having not been informed about the decision by the Counsel, this Court off late has noticed this growing tendency amongst the litigants in trying to shift the blame on the Advocate, especially, when they are seeking condonation of delay in filing of the appeal. 8. Now, as regards, the question of the appellants having not been informed about the decision by the Counsel, this Court off late has noticed this growing tendency amongst the litigants in trying to shift the blame on the Advocate, especially, when they are seeking condonation of delay in filing of the appeal. Unfortunately, most of these allegations are made without the application being accompanied with the affidavit of the lawyer and are invariably made behind his/her back and without his knowledge. This tendency has to be curbed. It is not the job or even the duty of a lawyer to run after his client rather it is the duty of the litigant to follow up the case with his Counsel, if not more, at least once in six months or year''s time. 9. As observed earlier, the condonation sought to be condoned is more than five and half years, therefore, it is incumbent upon the applicants to have clearly spelt out the time and date or at least year when they contacted the Counsel and in absence of affidavit of the Counsel they cannot be permitted to level wild allegations and aspersions upon him. The story now put-forth by the applicants only a cock and bull story and, therefore, cannot be accepted. 10. 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. 11. 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. 12. Since, the application for condonation of delay has been dismissed, the Regular Second Appeal is also dismissed accordingly.