Kozhikara Veettil Seyd Alavi (Died) v. P. B. Abdul Hameed S/o Bava
2021-12-10
A.BADHARUDEEN, S.V.BHATTI
body2021
DigiLaw.ai
JUDGMENT : A. BADHARUDEEN, J. 1. This Original petition has been filed by the petitioners, who are aggrieved by Ext.P3 order dated 3.4.2013 passed by the Wakf Tribunal, Ernakulam. The following reliefs sought for in this Original Petition: “(i) To call for the records relating to Exts.P-1 to P-4 and to issue any order or direction, directing setting aside Ext.P-3 order. (ii) To issue any order or direction, directing transfer of W.O.A. No. 5 of 2012 and its restoration application pending before the Wakf Tribunal, Ernakulam, to any other Court or Tribunal as this Honourable Court deem fit. (iii) Any other appropriate, writ, order or direction also may be granted to meet out justice under the circumstances of the above case.” 2. Heard both sides in detail. 3. Perused the order impugned. Precisely the allegation is that W.O.A. No. 5/2012, which was dismissed for default, was sought to be re-admitted for deciding the same on merits by the petitioners. Initially, I.A. No. 243/2012 was filed under Section 5 of the Limitation Act to condone delay of 15 days in filing petition for re-admission. Thereafter, I.A. No. 214/2013 also was filed to correct the number of delay as 22 days, instead of 15 days. 4. After hearing both sides, the Wakf Tribunal dismissed the application. 5. It is submitted by the learned counsel for the original petitioners that the Tribunal dismissed the applications on flimsy grounds. 6. On perusal of Ext.P3, technicalities were discussed in detail with a view to non-suit the petitioners though no detailed discussion with regard to the element of “sufficient cause.” 7. Coming to the core issue, Section 5 of the Limitation Act provides extension of prescribed period in certain cases. For clarity, Section 5 of the Limitation Act is extracted hereunder: “5. Extension of prescribed period in certain cases: Any appeal or any application, other than an application under any of the provisions of Order XXI 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 misled 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.” 8. In construing Section 5 of the Limitation Act, the predominant point to be considered is whether “sufficient cause” for excusing the delay is shown to exercise the discretion vested with the court in favour of the party. There are catena of decisions on this point. 9. In Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji and Others, 1987 (2) SCC 107 a two-Judge Bench of the Apex Court observed that the legislature has conferred power to condone delay by enacting S.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 sub-serves the ends of justice, for that is the life-purpose for the existence of the institution of courts. 10. In G. Ramegowda, Major and Others vs. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142 , Venkatachaliah, J. (as his Lordship then was), speaking for the Court, has opined thus: “The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. Ramlal, Motilal and Chhotelal vs. Rewa Coalfield Ltd. AIR 1962 SC 361 , Shakuntala Devi Jain vs. Kuntal Kumari, 1969 (1) SCR 1006 , Concord of India Insurance Co. Ltd. vs. Nirmala Devi, 1979 (4) SCC 365 , Lala Mata Din vs. A. Narayanan, AIR 1969 SC 575 and Collector, Land Acquisition vs. Katiji, 1987 (2) SCC 107 etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona-fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts.
If there is negligence, deliberate or gross inaction or lack of bona-fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression “sufficient cause” in S.5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona-fides is imputable to the party seeking condonation of the delay.” 11. In O.P. Kathpalia vs. Lakhmir Singh (dead) and Others, 1984 (4) SCC 66 the court was dealing with a fact -situation where the interim order passed by the court of first instance was an interpolated order and it was not ascertainable as to when the order was made. The said order was under appeal before the District Judge who declined to condone the delay and the said view was concurred with by the High Court. The Court, taking stock of the facts, came to hold that if such an interpolated order is allowed to stand, there would be failure of justice and, accordingly, set aside the orders impugned therein observing that the appeal before the District Judge deserved to be heard on merits. 12. In State of Nagaland vs. Lipok AO and Others, 2005 (3) SCC 752 the Court, after referring to New India Insurance Co. Ltd. vs. Shanti Misra, 1975 (2) SCC 840 , N. Balakrishnan vs. M. Krishnamurthy, 1998 (7) SCC 123 , State of Haryana vs. Chandra Mani, 1996 (3) SCC 132 and Special Tehsildar, Land Acquisition vs. K.V. Ayisumma, 1996 (10) SCC 634 came to hold that adoption of strict standard of proof sometimes fails to protect public justice and it may result in public mischief. 13. In Improvement Trust, Ludhiana vs. Ujagar Singh and Others, 2010 (2) SCC 786 , it has been held that while considering an application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves. 14.
It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves. 14. A reference to the principle stated in Balwant Singh (dead) vs. Jagdish Singh and Others, 2010 (8) SCC 685 would be quite fruitful. In the said case the Court referred to the pronouncements in Union of India vs. Ram Charan, AIR 1964 SC 215 , P.K. Ramachandran vs. State of Kerala, 1997 (7) SCC 556 and Katari Suryanarayana vs. Koppisetti Subba Rao, 2009 (11) SCC 183 and stated thus: “25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.” 15. In a subsequent decision reported in Brijesh Kumar and Others vs. State of Haryana and Others, 2014 KHC 4177 the Apex Court held that sufficient cause is a condition precedent for exercising discretion by Court for condoning delay. 16. Thus the law is settled that there should not be a pedantic approach while construing the term “sufficient cause” but the principle that is to be borne in mind is that the matter has to be dealt with in a rational, commonsense and pragmatic manner to render substantive justice and to avoid denial of justice. 17. Therefore, when “sufficient cause” is shown, the court is bound to exercise its discretion to render justice by condoning the delay. At the same time, the court should take into account the culpable negligence on the party and in such cases the discretion to be exercised in the negative. 18. In this context, it has to be noted that disposal of matters on merits is the statutory sanction and the courts would be liberal in condoning delay, in cases, where “sufficient cause” is established. It has to be observed further that when the delay is for a short period, the discretion should be exercised more liberally without insisting for explanation for each day's delay. Here only 22 days' delay (though it was stated in the first petition as 15 days) was sought to be condoned.
It has to be observed further that when the delay is for a short period, the discretion should be exercised more liberally without insisting for explanation for each day's delay. Here only 22 days' delay (though it was stated in the first petition as 15 days) was sought to be condoned. According to the original petitioners, the application for re-admission could not be filed since the petitioners were engaged in some urgent personal matters and thereby they could not contact the lawyer. When considering 22 days' of delay, the above explanation to be read as a “sufficient cause.” In this context, the Tribunal should have allowed the petition and decided the appeal on merits. As such, the Tribunal went wrong in passing Ext.P3 order. 19. In the result, this Original Petition stands allowed. Ext.P3 order impugned is set aside. Accordingly, the delay in filing the appeal stands condoned and the appeal re-admitted back to file. 20. Therefore, the parties are directed to appear before the Tribunal on 10.01.2022 at 11.00 a.m. for pursuing the appeal, W.O.A. No. 5 of 2012. 21. The learned Tribunal is directed to proceed with the appeal on merits, in accordance with law. 22. Considering that the matter is of the year 2012, the Tribunal is directed to expedite disposal of W.O.A. No. 5 of 2012, at any rate, within 3 months from the date of receipt of a copy of this judgment or its production by the parties concerned.