Ajay Sharma and another vs Sarvajeet Singh

This Civil Revision petition under section 115 of the Code of Civil Procedure (CPC) is directed against the order passed by the Additional District Judge, Una on 22.1.2013 whereby he condoned the delay in filing of the appeal.

The brief facts, as are necessary, for the adjudication of this petition are that the predecessor of the plaintiff-petitioner late Sh. Krishan Murari filed a suit for declaration that he is the sole trustee of the temple of Lord Shiva and its structure and is entitled to succeed to the office of the trust and manage affairs of the temple and its other properties and that no other person has any right to interfere in the management of the temple. He further sought permanent prohibitory injunction by way of consequential relief to restrain the general public from interfering and obstructing him from managing and controlling the affairs of temple and its properties.

The aforesaid claim was made on the basis that one Nanku had been appointed as trustee of the temple of Lord Shiva known as Thakurdawara vide order dated 12.7.1860 in pursuance of the order passed by the Financial Commissioner, Punjab, which orders were stated to be continuing and yet certain members of the general public were trying to interfere in the management of the temple. Hence, the suit.

As none appeared on behalf of the defendant to contest the suit on 25.4.1995, learned trial court passed an ex parte judgment and decree in favour of the petitioner. It is against this judgment and decree that the respondent filed an appeal before the first appellate court. However, as the appeal was barred by limitation, an application under section 5 of the Limitation Act for condoning the delay for filing of the appeal was also filed.

It appears that alongwith the appeal, respondents also filed an application under order 41 rule 5 of the CPC and the learned first appellate court without condoning the delay proceeded to pass orders on this application. This led to filing of the Civil Revision Petition No. 393 of 2001 before this Court. The Revision Petition was referred to the Hon''ble Division Bench for answering the question of law framed by the learned Single Judge and was decided vide judgment dated 24.12.2010 whereby the order passed on the said application by the learned first appellate court was set aside and the matter was remanded to it with a direction to first dispose of the application under section 5 of the Limitation Act.

Though the application under section 5 initially was dismissed in default, however, thereafter the application was restored and vide order dated 22.1.2013, the delay in filing of the appeal was condoned and appeal was directed to be registered. It is against this order that the instant revision petition has been filed by the plaintiff-petitioner on the ground that the order passed by the court below is contrary to law and, therefore, deserves to be set aside.

It is vehemently argued that what to talk of the maintainability of the application under section 5 of the Limitation Act, the appeal itself was not maintainable as it has been preferred against a dead person.

I have heard the learned counsel for the parties and have gone through the records of the case carefully.

There can be no quarrel with the proposition that the appeal if itself was defective and was filed against a dead person, then obviously, the application under section 5 of the Limitation Act, could not have been allowed.

However, this does not appear to be the fact situation obtaining in this case. Not only had the legal representatives of Krishan Murari, the original plaintiff, themselves filed Civil Revision before this Court, but even otherwise, the respondents themselves had filed a separate application before the learned trial court for bringing on record the legal representatives of Krishan Murari. Notice on such application had been ordered to be served upon the said legal representatives, as would be evident from the order passed on 16.10.2001, which reads thus:

"Present: Mr. Ajay Sharma, Advocate vice

Mr. Y.P. Sharma, Advocate.

An application under order 22 rule 4 CPC filed.

Notice of the application be issued to LRs of respondents for 5.12.2001."

It is not in dispute that respondent Krishan Murari had died on 5.10.2001 and the application for bringing on record the legal representatives was filed virtually within ten days of his death on 16.10.2001 and on the same date, notice had been ordered to be issued to the legal representatives of deceased Krishan Murari. Thus, in these circumstances, there is no question of the appeal being defective or having abated on account of death of Krishan Murari.

Apart from above, as already noticed, the legal representatives of deceased Krishan Murari had themselves filed Civil Revision No. 393 of 2001 before this Court and obviously, therefore, there was no requirement of bringing on record the legal representatives of Krishan Murari in the suit itself as it is more than settled that the principle of substitution of the legal representatives at one stage of the suit, enures in subsequent stages. Reference in this regard can conveniently be made to the judgment rendered by this Court in Raj Mal and others vs. Phulan Devi and others, ILR 1982 HP 332, wherein it has been held as under:

"4. It is not disputed that this Court had sent for the records and thereafter no proceedings took place in the trial court during the pendency of the revision. For all practical pur-(poses the suit stood stayed. It is the practice of this Court either to stay the suit specifically or, in the alternative, to send for the records. The results are the same.

My attention has been drawn to a judgment of the Punjab and Haryana High Court in Brij Lal and others v. Vijay Kumar and others, 1979 P.L.R. 391. A similar question had arisen in that case. A revision was preferred against an interlocutory order passed by the trial court. During the pendency of the revision the High Court had stayed the proceedings before the trial court. Before it could be decided a party had died. The High Court brought on record the legal representatives of the deceased party. After considering some decisions, it was held that the suit shall not be taken as pending "in the context of Order 22, rule 4, Civil Procedure Code, during the pendency of revision in the High Court against the order of the trial court...... wherein the proceedings in the trial court had been stayed. The question of abatement of the suit, therefore, does not arise."

Mr. Sood has assailed the correctness of this decision. I need not go into the question because I find that the Supreme Court has spoken about the question. The decision of the Supreme Court is reported in A.I.R. 1965 S.C. 1794, (Rangubai Kom Sankar Jagtap v. Sunderabai Bhratar Sakaram Jedhe and others). It is unfortunate indeed that this decision was not brought to the notice of the learned Judge who decided the case of Brij Lal (supra).

In Rangubai''s case (supra), the court considered the judgment of the Judicial Committee of the Privy Council in Brij Inder Singh v. Lala Kanshi Ram and others, A.I.R. 1917 P.C. 156. After quoting the reasons given by the Judicial Committee holding that the suit did not abate, the court observed:

"This judgment is an authority for the position that if the legal representatives of a deceased plaintiff or defendant are brought on record in an appeal or revision from an order made in the suit, that would enure for all subsequent stages of the suit",

(emphasis supplied)

Thereafter the Supreme Court proceeded to consider the decision of the High Court of Madras in Shankaranaraina Saralaya v. Lax mi Hengsu and others, A.I.R. 1931 Madras 277, which distinguished the Privy Council decision. The Supreme Court then proceeded to consider the question on principle and the effect of a combined reading of Order 22, rules 3, 4 and 11 of the Code of Civil Procedure. It then observed:

"But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit"

(emphasis supplied)

It is true that when the principle was applied to the case which was before that court, it was held that the same legal position cannot be invoked in the reverse or converse situation. But then the principle enunciated by the Judicial Committee was quoted with approval.

Mr. Sood wanted me to study the judgment of the Judicial Committee of the Privy Council referred to above so that he could illustrate that the conclusions of the Supreme Court are not correct. I am afraid I cannot do so. The Supreme Court has interpreted that decision and has enunciated the proposition. I am bound by that.

Since the Supreme Court decision specifically makes a mention of the revision, I have to hold that the legal representatives duly brought on record during the course of revisional proceedings shall enure for the benefit of the suit."

Now, adverting to the other contention raised by the petitioner regarding there being no sufficient cause to condone the delay, I really do not find any merit in the said contention.

Undisputedly, the instant suit was filed by the respondent against the general public of village Amb without arraying any person as a party. However, the summon/notice Ex.AW-1/A in execution shows that the same was issued to Sarvjit Singh and was served on 13.9.2001 (wrongly mentioned as 13.9.2000). It is the specific case of the respondent that he came to know about the ex parte decree only after the service of summons on 13.9.2001. This fact has been duly proved by Sarwan Dass as AW-1 wherein he has proved that he had received summons on 21.6.2001 for appearance on 17.9.2001. Similarly, AW-2 Sat Pal Sharma has proved his report Ex.AW- 2/A whereby he has served the summons on 13.9.2001.

Saravjit Singh himself appeared as AW-3 and corroborated the contents of the application on all material particulars in his affidavit Ex.AW-3/A. Though this witness was subjected to cross- examination, however, nothing adverse could be extracted therefrom.

On the other hand, the petitioner examined Prem Lal of the Copying Agency as RW-1, who has proved on record Ex.RW-1/A, B, C and D of Suit No. 137/94, i.e. order dated 29.6.1994 ordering service of general public by publication. The petitioner has further examined Aladatta as RW-2, who stated that he has served the general public by beat of drum.

The petitioner Ajay Kumar in his affidavit Ex.RW-3/A corroborated the contents of the reply, but failed to prove that the respondents were aware of the pendency of the suit prior to 13.9.2001.

Section 5 of the Limitation Act reads thus:-

"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 mislead 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."

The law of limitation is based on the legal maxim "Interest Reipubulicea Ut Sit Finis Litium" which means that it is for the general welfare that a period be put to litigation. It is more than settled that no litigant benefits by approaching the Court late. Without any good cause, no would like to have his claim extinguished.

In Collector, Land Acquisition, Anantnag Vs. Mst. Katiji, (1987) SCC 107, the Hon''ble Supreme Court, while laying down certain principles for condonation of delay, made a significant departure from the earlier judgments and observed:-

"The legislature has conferred the power to condone delay by enacting Section 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 subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiable 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:

Ordinary a litigant does not stand to benefit by lodging an appeal late.

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 be decided on merits after hearing the parties.

"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 pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

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 resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ''State'' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do evenhanded justice on merits in preference to the approach which scuttles a decision on merits."

In N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123, the scope and ambit of law of limitation was explained by the Hon''ble Supreme Court in the following manner:-

"It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. The reason for such a different stance is thus: 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 in not because on the expiry of such time a bad cause would transform into a good cause.

Rule 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. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 and State of West Bengal Vs. The Administrator, Howrah Municipality, AIR 1972 SC 749.

It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Count should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

In S. Ganesharaju (dead) through LRs. Vs. Narasamma (dead) through LRs. (2013) 11 SCC 341, the Hon''ble Supreme Court in no unequivocal terms held that expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice and unless the opposite party is able to show mala fides in not approaching the Court within the prescribed period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matters on merits, meaning thereby that such technicalities have been given a go-by. It is apt to reproduce the following observations:-

"12. The expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the Court within the prescribed period of limitation, generally as a normal rule, delay should be condoned. The trend of the Courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matters on merits, meaning thereby that such technicalities have been given a go-by.

We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that the appellants have shown sufficient cause seeking condonation of delay and the same has been explained satisfactorily."

In Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649, the principles applicable to an application for condonation of delay were culled out in the following terms:-

"(i) There should be a liberal, pragmatic, justiceoriented, 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) 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.

(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."

In a very recent decision in B.S. Sheshagiri Setty and others Vs. State of Karnataka and others, (2016) 2 SCC 123, the Hon''ble Supreme Court has held that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant. It is apt to reproduce the following observations:-

"28. If a statute does not prescribe the time limit for exercise of revisional power, it must be exercised within a reasonable time frame. In the instant case, it is evident that constant litigation has been carried on by the appellants, and therefore they cannot be accused of suddenly waking up after 13 years to claim their land. Further, in the context of limitation, it has been held by this Court in a catena of cases that when what is at stake is justice, then a technical or pedantic approach should not be adopted by the Courts to do justice when there is miscarriage of justice caused to a public litigant.

A three judge bench of this Court in the case of State of Haryana v. Chandra Mani (1996) 3 SCC 132 has held as under: (SCC pp. 135036, para 7)

"The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 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 resorting to delay. In fact he runs a serious risk. Judiciary is not respected 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.

More recently, a two Judge bench of this Court observed in the case of Dhiraj Singh v. State of Haryana (2014) 14 SCC 127 as under: (SCC p. 131, para 15)

"15.......The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of selfimposed limitations."

Tested on the aforesaid exposition of law, it would be noticed that there is no material available on record whereby the respondents could be held guilty of deliberate inaction, lethargy, willful or deliberate negligence.

Having said so, I find no merit in the petition and the same is dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.