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2022 DIGILAW 182 (MEG)

Dilip Singhania v. Anil Kumar Singhania

2022-07-11

H.S.THANGKHIEW

body2022
JUDGMENT 1. This is an application under Section 5 and 14 of the Limitation Act, 1963, praying for condonation of delay of a period of 60 days in filing the connected Revision Application against the judgment and order dated 04.11.2016, passed in T.S. No. 39(H) of 2013(Old No. T.S. 22(H) of 2005) by the Court of the Assistant District Judge, Shillong, dismissing an application under Section 10 CPC. The noting by the Registry, however, reflects that the delay as computed amounts to 1486 days after deduction of the regular appeal period of 90 days. 2. The explanation as put forward is that, the petitioner had earlier filed a Civil Revision being CRP No. 26 of 2017, under Article 227 of the Constitution of India against the same order, on the bona fide belief that an order rejecting the application under Section 10 CPC was not revisable under Section 115, which however, came to be dismissed by this Court by judgment dated 11.11.2019, on the ground of maintainability. Against the said order of dismissal, the petitioner then preferred an SLP being SLP No. 378 of 2019, before the Supreme Court of India, which was also dismissed vide order dated 17.01.2020, leaving the petitioner to pursue other remedies open in law, to challenge the order passed on the application under Section 10 of the CPC. 3. It is the further case of the petitioner that, copy of the order passed in the SLP was received on 08.02.2020, from the counsel and as the petitioner was unwell, he could not pursue the matter and the period of limitation expired on 28.02.2020. Other reasons for the delay have been attributed to agitation by local people in Assam, outbreak of the Corona Virus and lockdown from 24.03.2020 onwards and the unavailability of the counsel for the petitioner, who allegedly was out of station during the entire lockdown period and returned to Shillong only on November, 2020. The disruption in the normal functioning of the Courts till November, 2020, and closure of the High Court from 17.12.2020 upto 27.01.2021, for winter vacations are the other reasons cited by the petitioner. Necessary instructions to the counsel therefore, according to the petitioner could be given only on 11.02.2021 to file the Civil Revision which ultimately came to be filed on 10.03.2021. 4. Mrs. P.D.B. Baruah, learned senior counsel assisted by Mr. Necessary instructions to the counsel therefore, according to the petitioner could be given only on 11.02.2021 to file the Civil Revision which ultimately came to be filed on 10.03.2021. 4. Mrs. P.D.B. Baruah, learned senior counsel assisted by Mr. B. Wanswett, learned counsel for the petitioner submits that there has been no intentional negligence or any fault on the part of the petitioner in the delay caused in filing the Civil Revision, but the same was occasioned due to unavoidable reasons such as the outbreak of Corona Virus, apart from the period spent bona fide in pursuing the matter before this Court and the Supreme Court, and as such, this period should be excluded by application of Section 14 of the Limitation Act, 1963. Learned senior counsel also insists that cumulatively there is been only a delay of 178 days, and to substantiate the same has relied on an additional affidavit that had been filed, detailing and computing the number of days. The learned senior counsel has cited the following decisions in support of her arguments, namely Shakti Tubes Limited through Director v. State of Bihar and Others reported in (2009) 1 SCC 786 and Union of India and Others v. West Coast Paper Mills Ltd. and Another (III) reported in (2004) 3 SCC 458 . 5. An objection on behalf of the respondents, against the application for condonation has been filed, wherein the respondents have taken the ground that the petitioner had filed the earlier Civil Revision Petition No. 26 of 2017 and SLP No. 378 of 2020, in a gross abuse of process of law with the ill intention of escaping the period of limitation prescribed under Article 131 of the Limitation Act, 1963. It is also averred in the said objection, that the petitioner is challenging an order dated 04.11.2016, passed by the Assistant District Judge, Shillong, after a period of almost 4 years, when the normal period prescribed for filing of a Revision Petition expired on 02.02.2017, and hence the present Civil Revision Petition has been preferred after a delay of about 1496 days without any valid explanation. Another ground taken in the objection is that, the benefit of Section 14 of the Limitation Act, 1963 will not be available to the petitioner as the filing of the previous Revision Petition under Article 227 of the Constitution of India and the SLP before the Supreme Court cannot be treated as another civil proceeding within the meaning of a said section. 6. Mr. B. Bhattacharjee, learned senior counsel assisted by Ms. B. Das, learned counsel for the respondents while vehemently opposing the condonation application, submits that no sufficient cause has been made out and the reasons stated in the condonation application, such as because the petitioner and the counsel were unwell, that there was a law-and-order situation and also road blockades and bandhs has not been supported by any tangible material, and hence the same cannot be accepted. It is contended by the learned senior counsel, that the very fact that the earlier Civil Revision under Article 227 had been preferred on 06.11.2017, after over a year from the date of impugned order that is 04.11.2016, reflects that the petitioner was absolutely negligent. He submits that even if it was taken that the Revision under Article 227 was one under Section 115 CPC, there would be a delay of 271 days for which no explanation has been offered. It is also submitted that, at the time when the Revision under Article 227 was filed, objection had been taken in the first instance itself that, the same was not maintainable, but the petitioner even after its dismissal pursued the same remedy by filing the SLP, and even after the order of the Hon'ble Supreme Court dismissing the SLP on 17.01.2020, again without any justifiable reasons has filed the instant Revision Application only on 10.03.2021. The learned senior counsel submits that Section 2(h) of the Limitation Act, 1963 has defined 'good faith' and submits that as per the definition, nothing shall be deemed to be done in good faith which is not done with due care and attention which is squarely applicable to the petitioner. He submits that the exclusion of time as given in Section 14, only provides that what will be excluded, is only the time taken in proceeding bona fide in a Court without jurisdiction, which is not the case here. He submits that the exclusion of time as given in Section 14, only provides that what will be excluded, is only the time taken in proceeding bona fide in a Court without jurisdiction, which is not the case here. He submits that it is not a case of defect in jurisdiction or that of any other cause where such Court is unable to entertain the case and as such, the benefit of Section 14 is not available to the petitioner. Learned senior counsel has placed reliance on the following decisions in support of his case: a) 1961 SCC online Raj 125 : 1961 RLW 295 (Para 8 and 9) (Hassan Chand & Sons v. H.H. Maharaja Shri Gaj Singh) b) 1990 SCC Online Bom 28: AIR 1991 Bom 35 . (Para 11 and 12) (Ajab Enterprises v. Jayant Vegolies and Chemicals Pvt. Ltd.) c) 1999 SCC Online Ker 655: (2000) 123 ELT 416 (Para 22) (Abdul Hameed v. Government of India) d) (1973) 3 SCC 381 (Para 3 and 4) (Rabindra nath Samual Dawson v. Sivakasi and Others) e) (2002) 6 SCC 336 (Para 15 and 17) (Deena v. Bharat Singh) f) (2011) 15 SCC 30 (Para 32 and 33) (Ketan V. Parekh v. Enforcement Directorate) g) 2022 Live law (SC) 430 SLP (CIVIL) No. 5301 of 2022 (Para 18, 21 and 22) (State of Uttar Pradesh & Ors. v. M/S Satish Chand Shivhare and Brothers) h) SLP (C) Nos. 2054-2055 of 2022 (Para 5) (Lingeswaran etc. v. Thirunagalingam) 7. Having heard the learned counsel for the parties and considered their submissions, apart from perusing the materials as provided, what strikes this Court firstly, is the minimal and brief manner in which the substantial delay is sought to be explained by the petitioner in the condonation application. In view of this, the petitioner was allowed by this Court to file an additional affidavit which would indicate the details and extent of the period of delay in filing the instant Civil Revision. 8. The impugned order was passed on 04.11.2016, and in the normal course for a Revision under Section 115 CPC, the time would have expired on 14.03.2017. The application under Article 227 of the Constitution of India, against this order was filed only on 06.11.2017, which is over a year after the impugned order was passed. 8. The impugned order was passed on 04.11.2016, and in the normal course for a Revision under Section 115 CPC, the time would have expired on 14.03.2017. The application under Article 227 of the Constitution of India, against this order was filed only on 06.11.2017, which is over a year after the impugned order was passed. Thereafter, the said Civil Revision under Article 227 (CRP No. 26 of 2017) was dismissed on 11.11.2019 by this Court holding the revision not maintainable, whereafter the petitioner then approached the Supreme Court by way of an SLP, and the same was disposed of on 17.01.2020. The instant Revision has been filed only on 10.03.2021. 9. Looking into the facts of the case, in its totality especially the reasons offered to constitute sufficient cause, it is seen that the petitioner from the very outset itself, when the cause of action arose to challenge the impugned order, cannot be said to have been alert or alive to the circumstances and consequences of delay in pursuing such matters. The petitioner it is seen, chose to approach a higher Court only after a year had elapsed from the passing of the impugned order by way of an application under Article 227 of the Constitution. Thereafter, on the dismissal of the said CRP No. 26 of 2017, by this Court and subsequent order passed by the Supreme Court in the SLP on appeal on 17.01.2020, it took the petitioner over a period of one year, notwithstanding the outbreak of the Corona Virus to file the instant Revision Application. The order of the Supreme Court was passed over 2 months before the lockdown and even taking into account, the period of limitation excluded by the orders of the Supreme Court, the delay caused thereafter, has not been explained. 10. With regard to the application under Section 14 of the Limitation Act, 1963, it cannot be said that the petitioner while pursuing the Revision under Article 227 of the Constitution, was pursuing another civil proceeding with diligence within the meaning of Section 14, inasmuch as, as noticed earlier, the Revision Application under Article 227, was filed after a year had elapsed from the date of the impugned order. If the said application under Article 227 had been filed at least within a reasonable period of time perhaps, it could be said that the petitioner was diligent as he was pursuing another proceeding, but the same is not so. Further, the other ingredients of bona fide and 'good faith' are absent as there are no materials to support the contention that petitioner had exercised due diligence in the entire proceedings, after the impugned order had been passed. 11. Though, Courts have repeatedly given a liberal interpretation to the expression sufficient cause, the same however, can only be decided from the facts of a particular case and there cannot be a single formula. In the instant case, the petitioner has never at any point of time shown any urgency, or furnished any reasons that may allow this Court to take a liberal view, or to exercise its discretion to condone the delay. This application for condonation is bereft of any explanation, let alone satisfactory explanation, to constitute sufficient cause for the delay. Inaction, lack of good faith and want of bona fide is writ large on the face of the record itself. The decisions relied upon, are of no assistance to the petitioner and are not referred due to the peculiar facts of this case. The delay of 1486 days in preferring the instant Civil Revision Petition, therefore cannot and is not condoned, and the petition accordingly stands dismissed. 12. No order as to costs.