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Himachal Pradesh High Court · body

2018 DIGILAW 2112 (HP)

Unknown v. Ordinary A Litigant Does Not Stand

2018-11-29

TARLOK SINGH CHAUHAN

body2018
ORDER Tarlok Singh Chauhan, J. - The applicants are the claimants who aggrieved by inadequacy of the compensation amount awarded by the Motor Accident Claims, Tribunal (III), Mandi, have filed the instant appeal under section 173(I) of the Motor Vehicles Act, 1988. However, the appeal so filed is barred by one year, eight months and twelve days and for this purpose the instant application has been filed under Section 5 of the Limitation Act. It is averred that in the month of July 2016, the applicants and the family of fiance of applicant No. 3 for certain personal reasons decided to solemnize the marriage in August 2016, which otherwise stood postponed to December 2016. The entire family was busy in arrangements and purchasing. In the meanwhile, the counsel for the appellants/applicant informed them that their case has been decided by the learned Tribunal at Mandi. It is further averred that after the brutal death of her husband, the applicant-appellant No. 1 had been mentally upset to the extent that she was suffering from memory loss and the fact that the appeal had been decided by the learned Tribunal at Mandi, slipped from her mind. It is also averred that the applicants had been contesting the case, ever since 2012, and therefore, there is no question as to why the applicants would not file the application within the prescribed period of limitation. 2. Respondents have opposed the application by filing separate replies. As far as reply filed by respondent No. 1 is concerned, preliminary objections regarding the maintainability of application has been taken as no sufficient grounds have been shown for not filing the appeal within the prescribed period of limitation. It is averred that the applicants are estopped from filing the application by their own acts, deed, conduct and acquiescence and the application being vague, cryptic and misconceived have been taken on merits. 3. It is further averred that the applicants themselves being negligent cannot seek condonation of delay. 4. The insurance company, respondent No.2 in this case has filed separate reply, wherein the preliminary objections have been taken that the application is hopelessly time barred and deserves to be dismissed as no sufficient grounds for condonation of delay have been made out. The applicants have suppressed material facts, that the applicants have not remained vigilant and the explanation being sought to be given is not sufficient cause. The applicants have suppressed material facts, that the applicants have not remained vigilant and the explanation being sought to be given is not sufficient cause. As regards, the objections on merits of the same is only elaboration of the preliminary submissions. The appellants have filed rejoinder to the replies, wherein they have reiterated that the averments made in their claim petition and those of the replies are rebutted and contradicted by denying the averments made in the reply. I have heard learned counsel for the parties and have gone through the contents of the application as well as replies. Section 5 of the Limitation Act reads thus:- "5. Extension of prescribed period in certain cases-Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation---The fact that the appellant or the applicant was mislead by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 5. The law of limitation is based on the legal maxim "Interest Reipubulicea Ut Sit Finis Litium"which means that it is for the general welfare that a period be put to litigation. It is more than settled that no litigant benefits by approaching the Court late. Without any good cause, no would like to have his claim extinguished. 6. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) SCC 107 , the Hon''ble Supreme Court, while laying down certain principles for condonation of delay, made a significant departure from the earlier judgments and observed: - "The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiable liberal approach in matters instituted in this Court. But the message does not appear to havepercolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1. Ordinary a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence,or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable ofremoving injustice and is expected to do so. Making a justice-oriented approach from this perspective,there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ''State'' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the "State" is the applicant praying for condonation of delay. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-nongrata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause".So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits." 7. In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 , the scope and ambit of law of limitation was explained by the Hon''ble Supreme Court in the following manner: 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 delay. But it is a different matter when the first cut refuses to condone the delay. 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. 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. 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. 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 v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749 . 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 v. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749 . 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 theexplanation 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 easonable 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 Count 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." 8. In S. Ganesharaju (dead) through LRs. v. Narasamma (dead) through LRs. (2013) 11 SCC 341 , the Hon''ble Supreme Court in no unequivocal terms held that expression "sufficient cause" as appearing in section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice and unless the opposite party is able to show mala fides in not approaching the Court within the prescribed period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matters on merits, meaning thereby that such technicalities have been given a go-by. It is apt to reproduce the following observations:- "12. The expression "sufficient cause" as appearing in section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. It is apt to reproduce the following observations:- "12. The expression "sufficient cause" as appearing in section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the Court within the prescribed period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matters on merits, meaning thereby that such technicalities have been given a go-by. 14. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that the appellants have shown sufficient cause seeking condonation of delay and the same has been explained satisfactorily." 9. Though a number of judgments have been cited by either side and the same may not be referred as majority of these judgments have been considered by the Hon''ble Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649 , to which I need not make reference at this stage as the same would be referred hereinafter:- 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 factsituation. (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 factsituation. (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 vigilantso 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. (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." 10. In a very recent decision in B.S. Sheshagiri Setty and others v. State of Karnataka and others, (2016) 2 SCC 123 , the Hon''ble Supreme Court has held that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. It is apt to reproduce the following observations:-28. If a statute does not prescribe the time limit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. 11. A three judge bench of this Court in the case of State of Haryana v. Chandra Mani (1996) 3 SCC 132 has held as under: (SCC pp. 135036, para 7):- "The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 12. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 12. More recently, a two Judge bench of this Court observed in the case of Dhiraj Singh v. State of Haryana (2014) 14 SCC 127 as under: (SCC p. 131, para 15). "15.......The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations." 13. In view of the aforesaid explanation of law, if the facts of the present case are adverted to, I do not find there being any material on record whereby the applicants could be held guilty of deliberate inaction, lethargic, willful or deliberate negligence. The applicants have lost their sole bread-earner, and therefore, it cannot be assumed for that matter even presumed that they would have not liked to file the appeal within the prescribed period of limitation, more particularly, when they are claiming enhancement of compensation amount. As observed above the substantial rights of the applicant cannot be decided on technical grounds when there is no culpable negligence or deliberate inaction on merits, on the part of the applicants. 14. It is repeatedly held by Hon''ble Supreme Court that a litigant cannot stand to benefit by resorting to delay. In fact he runs a serious risk and it is for this reason that judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 15. Apart from the above, the cases under the Motor Vehicles Act including appeals cannot be equated with cases filed under other provisions of law for the reason that the Act stands amended way back and the provisions like limitation and jurisdiction have virtually done away with one aspect. 15. Apart from the above, the cases under the Motor Vehicles Act including appeals cannot be equated with cases filed under other provisions of law for the reason that the Act stands amended way back and the provisions like limitation and jurisdiction have virtually done away with one aspect. If that be so, then obviously the Court cannot adopt a pedantic approach in the matter of condonation of delay in filing of the appeal arising out of the award under the Motor Vehicles Act, rather it is required to adopt in pragmatic and practical approach, so as to do complete justice, especially when the Act is beneficial piece of legislation meant to protect the interest of the victims and to protect the interest of the person(s). 16. In this view of the matter, I find merit in this application and the same is allowed. The delay in filling the a is condoned. Application stands disposed of.