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2018 DIGILAW 675 (CAL)

In Re: Sulekha Ray v. .

2018-09-11

SAHIDULLAH MUNSHI

body2018
JUDGMENT : Sahidullah Munshi, J. In re: C.A.N. 3429 of 2017 1. This is an application under Section 5 of the Limitation Act seeking condonation of delay of 887 days in filing the second appeal before this Court. 2. The second appeal was filed on 5.4.2017 i.e. out of time by 887 days as per the Stamp Reporter's report. In the application the only ground has been agitated by the petitioners that because of the financial stringency they could not contact with their lawyer and could not file the appeal within the period of limitation. 3. The appellant No. 1 is mother and appellant No. 2 is the son. It is stated that the appellant No. 2 is a daily labourer and appellant No. 1 is depending on the income of the appellant No. 2. 4. Mr. Drolia, learned Counsel appearing for the respondents submits that after passing of Legal Services Authorities Act, 1987 this plea of financial stringency should not be considered by a Court inasmuch as even the poor people are entitled to get free legal services from the Legal Services Authority. Mr. Drolia is right in his submission, but unfortunately, this rule has not been fully implemented in our country and it is not expected that a poor labourer would know the provisions of this facilities made available under the aforesaid Legal Services Authorities Act. In all practical sense this poor class of people in our country are still deprived of their legal right, far less to say about legal services. 5. To oppose the contention for condonation of delay, Mr. Drolia has relied on a decision in the case of Basawaraj and Ors. v. Spl. L.A. Officer reported in (2013) 14 SCC 81 . Paragraphs 13 and 15 of the said decision are set out as follows:- "13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud, and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Law of England, Vol. 28, p. 266: "605. Policy of the Limitation Acts. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Law of England, Vol. 28, p. 266: "605. Policy of the Limitation Acts. - The Courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence". An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project.). "15. The law on the issue can be summarised to the effect that where a case has been presented in the Court beyond limitation,' the applicant has to explain the Court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the Court within limitation. In case a party is found to be negligent or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature." 6. On the basis of the ratio decided in the said reported judgment of the Hon'ble Apex Court, Mr. Drolia submits that the petitioners are not entitled to get any relief. On the basis of the ratio decided in the said reported judgment of the Hon'ble Apex Court, Mr. Drolia submits that the petitioners are not entitled to get any relief. From the said decision it is apparent that Court has made an observation that if the petitioner has failed to show sufficient cause for approaching the Court in filing the appeal, then they cannot get any benefit for condonation of delay. 7. On going through the entire decision, it appears that the Hon'ble Apex Court declined to condone the delay on the ground that there was a delay of five and half years in filing the appeal in question under Section 54 of the Land Acquisition Act, 1894 and further that the petitioners could not satisfy the Court about their bona fide to approach the Court after a period of five and a half years and that is why the Hon'ble Apex Court rejected prayer for condonation of delay. 8. After hearing the submissions made by Mr. Bhattacharya, learned Counsel appearing for the petitioners and Mr. Drolia for the opposite parties/respondents, my conscience does not permit me to hold that the application filed by the petitioners seeking condonation of delay should be rejected holding that the petitioners are not sufficiently prevented from presenting the appeal in time owing to their poverty. Therefore, prayer for condonation of delay deserves to be allowed and is allowed. 9. The application being CAN 3429 of 2017 is disposed of. 10. Since the appellants have lost in both the Courts and the land in dispute belongs to the defence, it is desirable that the appeal should be heard under Order XLI Rule 11 of CPC at an early date. Let this matter be placed before the appropriate bench taking matters under Order XLI Rule 11 of the CPC.