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2020 DIGILAW 655 (ALL)

Vijay Pal Singh (Dead) v. State Of U. P.

2020-03-03

AJAY BHANOT

body2020
JUDGMENT : 1. Heard Sri Akhilesh Tripathi, learned counsel for the petitioner, learned Standing Counsel for the respondent-State and Sri K.M. Asthana, learned counsel assisted by Sri Prabhav Srivastava, learned counsel for the respondent No.4. 2. The father of the petitioner late Vijay Pal Singh had carried the order passed by the learned reference court in appeal by instituting the First Appeal No.395 of 2001 (Vijay Pal Singh Vs. State of U.P. and others). The father of the petitioner was prosecuting the first appeal before this Court. The first appeal was decided by this Court by judgment and order dated 09.10.2014. The matter was remitted by this Court to the learned reference court by judgment and order dated 09.10.2014. 3. The father of the petitioner had expired in the year 2012. The records of the first appeal were transmitted to the court of learned reference court in the year 2017. The petitioner moved an application before the learned reference Court in Misc. Case No.557 of 2017 (Vijay Pal Singh Vs. State of U.P. and others) for hearing of the reference. The hearing of the reference commenced thereafter. The petitioner was able to access the full records of the case only on 04.11.2019, before the learned reference court. It was on that date the petitioner got knowledge that the substitution application was not filed on his behalf after the death of his father. The petitioner immediately upon getting such knowledge moved a substitution application for being substituted in place of deceased father/Vijay Pal Singh. An application under Section 5 of the Limitation Act for condonation of delay was filed in aid of the substitution application. 4. While rejecting the delay condonation application the learned reference court in the impugned order dated 13.12.2019 has set forth these findings. The father of the petitioner died on 29.09.2012. This Court decided the First Appeal No.395 of 2001 (Vijay Pal Singh Vs. State of U.P. and others) by the judgment and order rendered on 09.10.2014. The petitioner has made a substitution application seven years after the death of his father. This inordinate delay is not liable to be condoned. 5. I am afraid the learned reference court misdirected itself in law by taking an entirely pedantic view in a matter which engages the most substantive rights of the petitioner. The petitioner has made a substitution application seven years after the death of his father. This inordinate delay is not liable to be condoned. 5. I am afraid the learned reference court misdirected itself in law by taking an entirely pedantic view in a matter which engages the most substantive rights of the petitioner. The learned reference court is overlooked the fact that the delay was inbuilt in the system itself. This Court had rendered its judgment and remitted the matter to the reference court way back in the year 2014. The records of the case were transmitted to the reference court three years after the judgment of the court. The proceedings before the learned reference court commenced only in the year 2017 and that also on the misc. application made by the petitioner. 6. The purpose of laws of limitation is to ensure that the parties may remain vigilant to their cause and institute their claim in good time. Laws of limitation are statutes of repose. They are usually triggered in cases of inordinate delay caused by apathy of litigants. The mandate of laws of limitation is not to shut the doors of justice to the parties or decline adjudication on merits. On the contrary it should be the constant endeavour the courts of law to adjudicate issues on merits and dispense justice on a substantive basis. 7. There is good authority to say that the courts should adopt a liberal, pragmatic and a justice oriented approach matters of condonation of delay. Equally the courts should avoid a pedantic view and eschew servitude to procedure in such matters. 8. The narrative shall now be reinforced with such authorities in point. 9. The Hon'ble Supreme Court in the case of Collector, Land Acquisition V. Mst. Kati Ji and others, reported at 1987 (13) ALR 306 (SC) held as follows: "The legislature has conferred the power to condone delay by enacting section 5 of the 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 of 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 of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy." And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily, 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 he decided on merit 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 and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not claim to have vested right in injustice being done because of a non-deliberate 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 restoring to delay. In fact, he runs a serious risk. 6. It must be grapped that the judiciary is respected not 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." 10. A similar view was taken by the Hon'ble Supreme Court in the case of N. Balakrishnan Vs M. Krishnamurthy reported at 1998 (7) SCC 123 . The relevant portion of the judgment is extracted here under:- "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 is not because on the expiry of such time a bad cause would transform into a good cause. The relevant portion of the judgment is extracted here under:- "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 is not because on the expiry of such time a bad cause would transform into a good cause. Rules 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." 11. In Smt. Prabha V. Ram Prakash Kalra reported in 1987 (Suppl.) SCC 339, the Supreme Court took the view that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. 12. The Apex Court made a distinction in delay and inordinate delay in Vedabai @ Vaijayanatabai Baburao Patil V. Shantaram Baburao Patil and others reported at 2001 (44) ALR 577 (SC) by holding : "In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the otherwise will be a relevant factor so the case calls for a more cautious approach...." 13. The importance of discretion of the court was emphasized by the Hon'ble Supreme Court in New India Insurance Co. Ltd. V. Smt. Shanti Misra reported at AIR 1976 SC 237 by holding that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The express "sufficient cause" should receive a liberal construction. 14. Ltd. V. Smt. Shanti Misra reported at AIR 1976 SC 237 by holding that discretion given by section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The express "sufficient cause" should receive a liberal construction. 14. The Hon'ble Supreme Court in Shakuntala Devi Jain V. Kuntal Kumari reported at AIR 1969 SC 575 , held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay can not be refused to be condoned. 15. Adopting a justice oriented approach to delay condonation application the Hon'ble Supreme Court in O.P. Kathpalia V. Lakhmir Singh reported in AIR 1984 SC 1744 held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. 16. The petitioner was not substituted in place of his father even before this Court confirms the fact that the father of the petitioner was prosecuting the first appeal and not the petitioner. There is nothing abnormal in this conduct. In fact it is the most natural manner in which litigations are prosecuted in this State. 17. The petitioner is the sole heir of deceased/Vijay Pal Singh whose lands were acquired. The petitioner is entitled to prosecute the claim for compensation on behalf of his father and is liable to be substituted. There was no inordinate delay on part of the petitioner to institute the substitution application. The petitioner was reasonably diligent to his cause. Part of the delay was caused by systematic deficiencies. Substantive rights of the petitioner are engaged in the controversy and in these facts rejection of the delay condonation application has resulted in a serious miscarriage of justice. 18. The authorities cited in the preceding part of the judgment are thus squarely applicable to the facts of the case. 19. The delay condonation application is liable to be allowed. The delay condonation application is allowed. The order dated 13.12.2019 passed by the learned reference court/learned Additional District Judge, Moradabad is set aside. 20. The matter is remitted to the learned reference court/learned Additional District Judge, Moradabad to execute the following direction: 21. 19. The delay condonation application is liable to be allowed. The delay condonation application is allowed. The order dated 13.12.2019 passed by the learned reference court/learned Additional District Judge, Moradabad is set aside. 20. The matter is remitted to the learned reference court/learned Additional District Judge, Moradabad to execute the following direction: 21. The learned reference court/learned Additional District Judge, Moradabad shall decide the substitution application immediately upon receipt of a certified copy of this order. 22. The petition is allowed.