Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 440 (HP)

Harnam Singh v. Giano Devi

2018-03-23

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —This appeal under Order 43 Rule 1 (c) of the Code of Civil Procedure is directed against the order passed by the learned Additional District Judge, Fast Track Court, Hamirpur, whereby he dismissed the application filed for bringing on record the legal representatives of respondent No. 8 Ajit Singh after condoning the delay and setting aside the abatement. The facts lie in a narrow compass. 2. The appellants had filed Civil Appeal No. 46/2000 against the judgment and decree passed in Civil Suit No. 181 of 1992 by learned Senior Sub Judge on 8.12.1999. This appeal was dismissed in default on 25.08.2005, for want of appearance of the appellants or their counsel. 3. The appellants filed an application for restoration. However, before the same could be taken up, one of the respondents Smt. Shanti Devi died on 12.11.2007 and accordingly her name was ordered to be struck off vide order dated 31.07.2009. However, in the interregnum, even respondent No. 8 Ajit Singh died on 11.06.2007 and thereafter an application was filed by the appellants for bringing on record the legal representatives of deceased respondent No. 8 Ajit Singh and condoning the delay and setting aside the abatement. 4. The application was contested by the respondents on the ground that the appellants were well aware about the death of respondent No. 8 Ajit Singh and yet had not taken steps for bringing on record his legal representatives. 5. The learned Appellate Court on 31.07.2009, famed the following issues:- 1. Whether there are sufficient grounds to condone the delay in filing application under Order 22 Rule 4, 9 (2) CPC to bring on record the LRs of deceased respondent No. 8 Ajit Singh?OPA 2. If issue No. 1 proved, whether Santosh Kumar, Pawan Kumar and Nirmla Devi sons and widow of deceased Ajit Singh, r/o village Bhambla, PO Bhambla, Tehsil Baldwara, District Mandi, are the LRs of deceased respondent No. 8 Ajit Singh?OPA 3. Relief. 6. Issue No. 1 was decided against the appellants by holding that the application for restoration had abated on account of the death of Ajit Singh, whereas Issue No. 2 was held to have become redundant on account of the application itself having been dismissed. In view of the findings on Issue No. 1, the petition filed by the appellants under Order 9 Rule 9 CPC was held to have been abated. In view of the findings on Issue No. 1, the petition filed by the appellants under Order 9 Rule 9 CPC was held to have been abated. 7. Assailing these findings by filing present appeal, it is contended by Shri Ajay Sharma, learned counsel for the appellants that the findings recorded by the learned Courts below are totally perverse and therefore, not sustainable in the eyes of law. 8. Whereas, Shri G.D. Verma, learned Senior Advocate, duly assisted by Mr. B.C. Verma, Advocate, would vehemently oppose the prayer made by the appellants by contending that the order passed by the learned Court below is in accordance with law, therefore, needs to be upheld. I have heard learned counsel for the parties and have gone through the records of the case. 9. 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. 10. 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 Easha 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 was 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 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 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. 11. (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. 11. Bearing in mind the aforesaid exposition of law, in case the facts of the case are adverted to, it would be noticed that respondent No. 8 had expired on 11.06.2007 and the application for bringing on record his legal representatives was thereafter admittedly moved on 28.08.2008 i.e. more than one year and two months after the death of respondent No. 8 Ajit Singh, as against the statutory period of limitation i.e. 90 days. 12. However, it was pleaded by the appellants that they were not aware about the death of respondent No. 8 Ajit Singh. In support of their contentions only appellant No. 1 Harnam Singh appeared in the witness box on 31.12.2009 and stated that he came to know about the death of respondent No. 8 Ajit Singh only in August, 2008. In cross-examination, he admitted that the deceased was his cousin (his father''s elder brother son) . While being further examined, he stated that he could not tell as to who had informed him about the death of Ajit Singh. He admitted that appellant No. 2 Rajinder Singh was also the brother of deceased Ajit Singh. 13. On the other hand, respondents examined two witnesses. According to RW-1, deceased Ajit Singh and the appellants were his cousins. He further stated that both the appellants had participated in the last rites of deceased Ajit Singh who had died on 11.06.2007. 14. Rw-2 Santosh Kumar is the son of the deceased Ajit Singh. According to him appellant No. 1 was his uncle and they were having social relations. He further deposed that when his father died, the appellants had attended last rites. He further stated that the parties were related by blood relations. 15. As noticed above, the specific case of the appellants was that they did not know about the death of respondent No. 8 Ajit Singh and came to know only after 14 months and promptly thereafter have moved an application for bringing on record the legal representatives after condoning the delay and setting aside the abatement. 16. 15. As noticed above, the specific case of the appellants was that they did not know about the death of respondent No. 8 Ajit Singh and came to know only after 14 months and promptly thereafter have moved an application for bringing on record the legal representatives after condoning the delay and setting aside the abatement. 16. The learned Court below has not believed the story of the appellants and, to my mind rightly so, as it would be difficult to even comprehend much less believe that a person would not be informed of the death of his first cousin specially when it is proved on record that the relationship between the deceased and the appellants were cordial and the deceased was none other than the brother''s son of the appellants. 17. It is vehemently argued by Shri Ajay Sharma, learned counsel for the appellants that the appellants had not been residing at village Bhambla, District Mandi whereas the other brothers/respondents had , in fact, been residing at village Parol in tehsil Bhoranj, District Hamirpur for the last so many years and, therefore, were not aware of the death of the deceased respondent No. 8. 18. To my mind, even this contention of the appellants cannot be accepted for the simple reason that they have led no evidence whatsoever to show that on account of residing at different place, they had severed their ties and relationships with the respondents, rather it has specifically come on record in the statement of RW2 who is none other than son of the deceased, that his family was not only having but were maintaining social relations with the family of the appellants. Even otherwise, there is no presumption in law that only relationship within the village or in small distance places alone can be maintained and therefore, the mere fact that the appellants'' family had been residing in District Hamirpur and not in District Mandi would be of no consequence. 19. Evidently, the plea put-forth by the appellants lacks bonafide, which are imputable and attributable only to the appellants. That apart, the appellants have not approached the Court with clean hands and have sought condonation of delay on the basis of the averments which are false to their very knowledge. 19. Evidently, the plea put-forth by the appellants lacks bonafide, which are imputable and attributable only to the appellants. That apart, the appellants have not approached the Court with clean hands and have sought condonation of delay on the basis of the averments which are false to their very knowledge. Even otherwise, the conduct, behaviour and attitude of the appellants only reflects their inaction, negligence and lackadaisical attitude and therefore, no fault can be found in the order passed by the learned Court below whereby it has dismissed the application in question. 20. Having said so, I find no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.