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Himachal Pradesh High Court · body

2018 DIGILAW 2098 (HP)

Bisambhari Devi v. Roshan Lal

2018-11-28

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Present petition filed under Article 227 of the Constitution of India, is directed against the order dated 2.8.2018, passed by the learned District Judge, Bilaspur, Himachal Pradesh in CMP No. 540/6 of 2016, whereby an application having been filed by the petitioner-applicant (herein after referred to as "the applicant") under Order 41 Rule 3 CPC, praying therein for condonation of delay in filing the appeal against the order and decree dated 30.6.2007, passed in Lokadalat, by the learned Civil Judge (Jr. Division), Court No. 2, Ghumarwin, District Bilaspur H.P., has been dismissed. 2. Facts, as emerge from the record are that respondent No. 1 namely Roshan Lal, filed suit for declaration bearing No. 154/1/04/9 titled Roshan Lal v. Tarlok Chand and Ors, qua the land measuring 7-15 bighas comprised in khasra Nos. 142, khata khatoni No. 48/56, situate in village Ladda, Pargna Sariun, Tehsil Ghumarwin, District Bilaspur, H.P., and the said suit allegedly came to be compromised between respondents No. 1 to 3, on the basis of such compromise arrived before the lokadalat. Learned Civil Judge vide order dated 30.6.2007, decreed the suit of the plaintiff namely Roshan Lal. 3. Being aggrieved and dissatisfied with the aforesaid order, petitioner No.1 approached this Court by way of CMPMO No. 225 of 2008, praying therein for quashing and setting aside order as well as decree dated 30.6.2007, passed by the learned Civil Judge (Jr. Division), Court No. 2, Ghumarwin, District Bilaspur H.P. on the basis of compromise held in lokadalat. Matter remained pending before this Court for approximately three years, whereafter vide judgment dated 29.8.2011, this Court arrived at conclusion that impugned order dated 30.6.2007, passed by the learned Civil Judge (Jr. Division), Court No. 2, Ghumarwin, District Bilaspur H.P., could be laid challenge by way of an appeal under Section 96 CPC and as such, present petition to be not maintainable. Careful perusal of judgment dated 29.8.2011, passed in the aforesaid proceedings decided by the High Court (Annexure P-2) clearly suggests that this Court while holding the petition to be not maintainable reserved liberty to the petitioner to file an appeal before the competent court of law i.e. District Judge, under Section 96 CPC. Careful perusal of judgment dated 29.8.2011, passed in the aforesaid proceedings decided by the High Court (Annexure P-2) clearly suggests that this Court while holding the petition to be not maintainable reserved liberty to the petitioner to file an appeal before the competent court of law i.e. District Judge, under Section 96 CPC. Aforesaid order further reveals that High Court categorically recorded in its judgment that time taken in pursuing the present petition shall not be included in computing the period of limitation in the appeal to be filed before the Court of learned District Judge. 4. After passing of aforesaid judgment by this Court, petitioner No. 1 preferred an appeal in the Court of learned District Judge Bilaspur. Since there was delay in maintaining the appeal, petitioner No. 1 also filed an application under Order 41 Rule 3 CPC, praying therein for condonation of delay in maintaining the accompanying appeal, however fact remains that vide impugned order dated 2.8.2018, learned District Judge, dismissed the application under Order 41 Rule 3 for condonation of delay, as a consequence of which, appeal laying therein challenge to order dated 30.6.2007, passed by the learned Civil Judge in civil suit, never came to be adjudicated by the District Judge below on merits. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to condone the delay in maintaining the accompanying appeal after setting aside the impugned order referred herein above. 5. Having heard learned counsel for the parties and perused the material available on record vis--vis impugned order passed by the learned court below, this Court finds that application under Order 41 Rule 3 CPC for condonation of delay in filing the appeal came to be filed on 14.12.2011 i.e. approximately 3- months after passing of judgment dated 29.8.2011 passed by this Court in CMPMO No. 225 of 2008, whereby liberty was granted to the petitioner to file appeal under Section 96 of the CPC. 6. Careful perusal of application under Order 41 Rule 3 CPC having been preferred by the petitioner, seeking therein condonation of delay in filing the appeal certainly compels this Court to agree with the contention of Mr. 6. Careful perusal of application under Order 41 Rule 3 CPC having been preferred by the petitioner, seeking therein condonation of delay in filing the appeal certainly compels this Court to agree with the contention of Mr. Vijay Bhatia, learned counsel for the petitioner that no plausible explanation has been rendered on behalf of the petitioner as far as delay in maintaining the appeal after passing of judgment dated 29.8.2011, by this Court, is concerned. In the application referred herein above, applicant/petitioner has averred that since judgment dated 29.8.2011 passed by the High Court in CMPMO No. 225 of 2008 was passed in her absence, she was not aware of the same. She also averred in the application that factum with regard to passing of aforesaid judgment was conveyed to her by the counsel on 10.12.2011, whereafter she filed appropriate proceedings in the competent court of law i.e. District Judge Bilaspur. Applicant has also averred that since counsel representing her before the High Court failed to communicate the order passed by this court below, delay, if any, in maintaining the appeal, deserves to be condoned. 7. Shri R.K. Gautam, learned senior counsel, representing the petitioner while referring to the impugned order stated that certified copy of judgment dated 29.8.2011, passed by this Court in CMPMO No. 225 of 2008, was attested on 1.10.2011 and delivered on 11.10.2011, and as such, there is delay of only 2 months in maintaining the appeal, which could be condoned by the court below having taken note of explanation rendered in the application. 8. Interestingly, this Court finds from the careful perusal of impugned order passed by the learned District Judge that factor with respect to non-explanation of delay qua the period of 388 days, which definitely pertains to period prior to passing of judgment dated 29.8.2011, by this Court in CMPMO No. 225 of 2008, weighed heavily with the learned District Judge while deciding the application for condonation of delay because there is no discussion at all with regard to subsequent delay of 2 months, which applicant was required to explain in view of the specific permission granted by this Court to her in proceedings initiated by her i.e. CMPMO No. 225 of 2008. Impugned order clearly reveals that learned District Judge while deciding the application mis-directed itself and wrongly arrived at a conclusion that since applicant-petitioner failed to explain the delay of 388 days, which had admittedly occurred prior to filing of CMPMO No .225 of 2008, application at hand deserves to be dismissed. Careful perusal of judgment dated 29.8.2011, passed by this Court in CMPMO No. 225/2008, leaves no room for doubt that delay, if any, prior to passing of order dated 29.8.2011, stood condoned because this Court while holding petition having been filed by petitioner No.1, not maintainable, had permitted her to file appeal before the court of learned District Judge, under Section 96 of CPC and this Court specifically observed in the judgment that time taken in pursuing the present petition shall not be included in computing the period of limitation in the appeal to be filed before the court of learned District Judge. It is also not in dispute that aforesaid judgment dated 29.8.2011, was never laid challenge by the respondents, who in the proceedings at hand, opposed the condonation of delay by way of filing detailed reply. 9. No doubt after passing of judgment date 29.8.2011, petitioner was required to file appeal immediately at the first instance, which she admittedly filed after the delay of 3 months and as such, she moved an application for condonation of delay. As has been taken note herein above, there is no plausible explanation rendered on record by the petitioner qua the delay of 3 years occurred in filing the appeal after passing the judgment dated 29.8.2011, but averments contained in para3 of the application suggest that factums with regard to passing of judgment dated 29.8.2011, certificated copy whereof came to be supplied to the counsel representing the petitioner on 10.12.2011, was not in the knowledge of the petitioner, who subsequently came to know about the same through her counsel on 10.12.2011, whereafter appeal along with application under Section 5 of the Limitation Act was filed within a period of three days. Application for condonation of delay is drafted and filed by the counsel representing the party and if it is not properly drafted, litigant cannot be allowed to suffer for the same. 10. Application for condonation of delay is drafted and filed by the counsel representing the party and if it is not properly drafted, litigant cannot be allowed to suffer for the same. 10. Repeatedly, it has been held by the Hon''ble Apex Court as well as this Court that litigant cannot be allowed to suffer for the fault, if any, on the part of his/her counsel. In the case at hand, bare perusal of application filed under Order 41 Rule 3 clearly suggests that counsel representing the petitioner was negligent while drafting the application because there is no plausible explanation rendered on record qua the delay. 11. Though this Court having gone through the record is in agreement with Mr. Bhatia, learned counsel for the respondent that delay being inordinate cannot be condoned in the instant case but delay, if any, in the instant case is of 2 months, which by no stretch of imagination can be termed to be inordinate. Shri Bhatia, placed reliance upon the judgment passed by the Hon''ble Apex Court in H. Dohil Constructions Company Pvt Ltd. v. Nahar Exports Limited and Anr. , (2015) 1 SCC 680 , to contend that inordinate delay in filing the appeal cannot be allowed mechanically without there being plausible explanation rendered on record by the applicant. There cannot be any quarrel with the aforesaid exposition of law because definitely, delay cannot be condoned without there being any proper explanation in that regard. It is also not in dispute that delay cannot be condoned as a matter of course, rather courts while considering the application for condonation of delay are required to scrutinize the material adduced on record by the parties seeking condonation of delay with utmost caution so that no prejudice is caused to the opposite party in whose favour some right may or may not have accrued on account of delay, if any, in filing the proceedings, which were required to be filed in the competent court of law within the stipulated period. In the aforesaid judgment, Hon''ble Apex Court has taken note of its recent judgment rendered in case titled Esha Bhattacharjee v. Raghunathpur Nafar Academy , (2013) 12 SCC 649 wherein certain principles were culled out to be kept in mind while dealing with application for condonation of delay. Para-23 of the judgment is reproduced herein below: 23. In the aforesaid judgment, Hon''ble Apex Court has taken note of its recent judgment rendered in case titled Esha Bhattacharjee v. Raghunathpur Nafar Academy , (2013) 12 SCC 649 wherein certain principles were culled out to be kept in mind while dealing with application for condonation of delay. Para-23 of the judgment is reproduced herein below: 23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee where several principles were culled out to be kept in mind while dealing with such applications for condonation of delay. Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCC pp 659-59) 21.4. (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. 21.5. (v) Lack of bana fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.8. (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. 21.9. (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. 21.10. (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." 12. In the judgment referred herein above, Hon''ble Apex Court has observed that there is distinction between inordinate delay and delay of short duration or few days, first category warrants strict approach, whereas second warrants for liberal delineation. Hon''ble Apex Court has also observed that the conduct, behavior and attitude of the party relating to its inaction or negligence are relevant factors to be taken into consideration and courts are required to weigh the scale of balance of justice in respect of both the parties. Hon''ble Apex Court has also observed that the conduct, behavior and attitude of the party relating to its inaction or negligence are relevant factors to be taken into consideration and courts are required to weigh the scale of balance of justice in respect of both the parties. Most importantly, in the principles, which have been reproduced herein above, the Hon''ble Apex Court has culled out principle that 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. In the instant case, applicant was only required to explain the delay caused by him in filing the appeal after passing of judgment dated 29.8.2011 in CMPMO No. 225 of 2008 and as such, she was only required to render explanation qua the delay of 2 months. Applicant/ petitioner has categorically stated in the application that factum with regard to pronouncement of judgment dated 29.8.2011, passed by this Court in CMPMO NO. 225 of 2008, was not in her knowledge, rather, that factum came to her notice on 10.12.2011, whereafter she within three days filed appeal along with application for condonation of delay. 13. Hon''Ble Apex Court in case titled N. Balakrishnan v. M. Krishnamurthy , (1998) 2 SLJ 1800, has categorically held that condonation of delay is a matter of discretion of the Court and Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Hon''ble Apex Court has further held that sometimes delay of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases, delay of very long range, can be condoned as the explanation thereof is satisfactory. Relevant paras of the aforesaid judgment are reproduced herein below:- "9.Appellant''s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 10.It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 11.The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause. 12.Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. 12.Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 13. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari , (1969) AIR SC 575 and State of West Bengal Vs. The Administrator, Howrah Municipality , (1972) AIR SC 749. 14. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." Hon''ble Apex Court has further held that primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. Most importantly, in the aforesaid judgment, the Hon''ble Apex Court, has held that in every case of delay, there can be some lapse on the part of the litigant concerned, which cannot be enough to turn down his plea and to shut the door against him. 14. Consequently, in view of the aforesaid discussion made herein above, as well as law referred herein above, this Court has no hesitation to conclude that impugned order dated 2.8.2018, passed by the learned court below is not based on proper appreciation of material available on record as well as law on the point and as such, same cannot be allowed to sustain, accordingly, present petition is allowed and impugned order dated 2.8.2018, is quashed and set-aside. Application filed under Order 41 Rule 3 (a) for condonation of delay is allowed. Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 12.12.2018, to enable it to proceed with the matter. Record, if any, be sent back forthwith. Registry is directed to apprise the court below with regard to passing of the instant order to enable it to do the needful in terms of instant order. In the aforesaid terms, petition stands disposed of, so also pending application(s), if any. Copy dasti.