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2019 DIGILAW 368 (HP)

Padma Devi v. Gandhari (deceased)

2019-04-03

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - Cmp (M) No. 918 of 2018: This order shall dispose of an application filed by the appellant-applicant under Order 22 Rules 4 and 9 of the Code of Civil Procedure read with Section 5 of the Limitation Act for brining on record the legal representatives of deceased respondent No.1 Gandhari. It is averred that respondent No.1 though expired on 1.12.2016, but the applicant was not aware of her death, and therefore, could not file an application before 17.7.2018 and the same is barred by 1 year, 4 months and 18 days. It is further averred that the applicant was not in speaking and visiting terms with deceased Gandhari and moreover the applicant is suffering from paralysis and bed ridden. It is in the given facts and circumstances of the case, condonation of delay and setting aside of abatement was sought. 2. The respondent contested the application by filing reply wherein it was pointed out that deceased was the real sister of the applicant and at the time of her death, the relations including applicant had visited the family of deceased at Sundernagar, and therefore, was fully aware of the death of deceased Gandhari. 3. The applicant thereafter filed rejoinder wherein it was averred that Smt. Gandhari was residing at Sundernagar where she died at village Bahot, whereas the applicant was residing in Bhagwan Mohalla, Mandi. The applicant, being old and ailing lady was unable to speak, had no knowledge of the death of deceased Gandhari. Thereafter the applicant filed counter affidavit to the reply that had been filed on the affidavit of LR-1(a) Pranjal Kumari wherein it was averred that on the death of Smt. Gandhari even the real son, namely, Manjul Bhardwaj was not informed about such death though he was working at Bhunter. 4. To this, the respondent has filed reply affidavit wherein she has reiterated that even though the relations between the families of the applicant and deceased were not cordial and they were not on visiting terms, however, it was denied that son of the deceased was not informed about the death of his mother. It was averred that the applicant was trying to create evidence of hospitalization. 5. It was averred that the applicant was trying to create evidence of hospitalization. 5. That apart, it has been specifically stated that immediate neighbours of the applicant, who were residing in the adjoining area of Bhagwan Mohalla, Mandi, namely, Dinu Kashyap, Madhuri, Bhagat Ram, Manorama and Krishan Lal amongst others, had offered the condolence to the family of deceased Gandhari during the death rituals, and therefore, the applicant had every knowledge of the death of Gandhari as even otherwise she herself had visited village Bahot at the time of death of Gandhari. 6. I have heard the learned counsel for the parties and have gone through the material placed on record. 7. 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. 8. However, at the same time, the Court is also required to see whether there is 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) .(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. 9. In view of the aforesaid exposition of law, it is crystal clear that in seeking condonation of delay in filing of the application, it is incumbent on the party seeking such condonation to show sufficient cause, which prevented the applicant from filing an application within the statutory period. 10. Judged in the light of aforesaid exposition of law, it would be noticed that the applicant has not approached this Court with clean hands as it is clearly established from the record that she was fully aware of the death of deceased Gandhari, as she visited her home at the time of her death. It is not all palatable to digest the theory that the applicant was not aware of the death of Gandhari. After all, Gandhari was the real sister of the applicant and even if the relations had turned sour and bitter even then it is difficult to comprehend that a sister would not go to offer condolence at such time to the members of the bereaved family. Rather, she herself would be an integral part of the bereaved family despite the relations inter se them being strained. Even otherwise the delay is colossal of 1 year, 4 months and 18 days. Even the medical certificate appended with the application cannot push the case of the applicant any forward. She could have conveniently filed an application within the prescribed period of limitation. 11. Even otherwise the delay is colossal of 1 year, 4 months and 18 days. Even the medical certificate appended with the application cannot push the case of the applicant any forward. She could have conveniently filed an application within the prescribed period of limitation. 11. Thus, in this background, this Court has no hesitation to conclude that the application not only lacks bona fide but it is based on the false averments. There has been gross inaction and negligence on the part of the applicant in filing this application, which is beyond the prescribed period of limitation and the explanation being offered is concocted. The conduct and attitude of the applicant only reflects upon her inaction, negligence and lackadaisical attitude. 12. 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. RSA No. 454 of 2010 13. In view of the orders passed in CMP (M) No. 918 of 2018, whereby the application for brining on record the sole respondent has been ordered to be dismissed, the appeal has abated and dismissed as such.