Bodh Raj and Others vs Smt. Rano Devi

Permod Kohli, J.—Through the medium of this application, condonation of delay of 382 days in filing review against the judgment dated 12-

10-2000 passed in CSA No. 19/1994, is sought in the backdrop of following facts and circumstances :

Applicant Smt. Rano Devi claims to be an illiterate poor lady belonging to backward area of village Makwal Tehsil Billawar. A suit for possession

filed by Bodh Raj in respect to land measuring 57 kanals 13 marlas was decreed by Munsiff, Billawar on 28-8-1973, Execution Petition for

execution of the aforesaid decree was contested on the ground of inexecutability of the decree. Plea of inexecutability prevailed with executing

Court resulting in dismissal of the petition on the ground of decree being against the provision of the J, & K. Agrarian Reforms Act vide order

dated 1-11-1975 of executing Court. Appeal preferred by the decree holder succeeded before the District Judge, Kathua who remanded the case

after setting aside the order of the executing Court and directed execution of the decree by his order dated 27-5-1989. The decree was against

Beli Ram predecessor in interest of the applicant who died during pendency of the appeal before the District Judge. Present petitioner who

succeeded Beli Ram's estates and in interest preferred a Civil Revision No. 184/90 before High Court, which came to be disposed of by a consent

order dated 26-9-1991, which reads as under :--

with the consent of the parties, this revision petition is disposed of with a direction to the executing Court that in case the petitioner herein prefers

an application for impleading her as party in the execution proceedings, the application be disposed of under law and she be permitted to canvass

her right to claim property as legal heir of the deceased.

Vide aforesaid order of the High Court, applicant was required to approach the executing Court and her claim as legal heir of the deceased Beli

Ram was to be considered by the said Court. On an application made by the applicant executing Court declared her as legal heir of deceased Beli

Ram vide order dated (sic). Pursuant to this declaration, she preferred objections to the maintainability of the execution petition. The Executing

Court (Munsiff, Billawar) came to conclusion that there are two conflicting directions one by the District Judge and other by the High Court and

accordingly sought opinion from the High Court by making reference. Reference No. 2 of 1993 made by Munsiff (executing Court), came to be

disposed of vide order dated 5-11-1993. The High Court while passing order on reference has opined that applicant having been declared as legal

heir of deceased, is under law entitled to file objections with regard to the maintainability of execution proceedings and directed the executing

Court to decide the objections according to law. The executing Court considered the objections of the applicant regarding maintainability of the

execution proceedings consequent upon remand by the High Court and vide order dated 24-3-1994 declared the decree as nullity and

inexecutable being in contravention of the provision of the Agrarian Reforms Act, 1976. An appeal preferred against this order, also came to be

rejected by the District Judge, Kathua vide order dated 30-8-1994 holding appeal not maintainable. This order of District Judge, Kathua became

subject-matter of further appeal before the High Court. The High Court came to the conclusion that the appeal is not maintainable. However, the

same was treated as revision and finally decided civil revision registered as CSA No. 19/1994 vide its order dated 12-10-2000. It is this order,

which is sought to be reviewed for which application for condonation has been filed. The main ground seeking condonation of delay is mentioned in

paras 9 and 10 of the application, which are reproduced as under :

That respondent/applicant herein's counsel in appeal is Mr. Gagan Basotra who never informed the applicant about the said order However,

the applicant received a summon from the executing Court where she was told that the execution is being taken because of some order of the

Hon'ble High Court. The respondent/applicant herein came to Jammu on 5th of Nov. 2001 and came to know about the judgment for which an

application was made on 7-11-2001 and the copy of the same was received on 20-11-2001.

That the applicant (Rano Devi) appeared in person before Munsiff, Billawar as she has no means to engage the counsel. The applicant with

difficulty arranged money to reach Jammu on 5th Nov. 2001 to know about the details of the order of the Hon'ble Court and thereafter made an

application for certified copy.

Mr. J. P. Singh, learned counsel appearing for non-applicants has filed detailed objections to the condonation application opposing condonation

application on the ground that applicant was duly represented before the High Court in CSA No. 19/94, Therefore, she is presumed to have

knowledge of the judgment delivered by the Court. It is further stated that litigant cannot sleep over her claim and she has to follow the case. The

counsel is under no obligation to inform the litigant about pronouncement of the judgment. It is further stated that the applicant has intentionally

omitted to mention the date when she appeared before the learned Munsiff or was served with summons from the Court of learned Munsiff,

Billawar. Applicant having not questioned the judgment passed in CSA No. 19/94, cannot be permitted to seek review thereof, as it does not

suffer with any error of law or procedure muchless an error apparent on the face of record. Plea of the applicant that she is a poor lady and did not

possess means to come to Jammu, is also denied being false, frivolous and baseless. Applicant is stated to be a person of means supported by her

husband and sons who were suitably employed and are residing in Jammu.

I have heard learned counsel for the parties.

Mr. P. N. Raina, learned counsel appearing for applicant submitted that the applicant acquired knowledge of the decision of the High Court in

CSA No. 19/94 only after she received summons from the executing Court where she came to know that the execution is being taken because of

judgment of the High Court. She accordingly came to Jammu on 5-11-2001 and acquired knowledge of the judgment for which application was

made on 7-11-2001. Copy was received by her on 20-11-2001. Application is accordingly within limitation from the date of knowledge of the

judgment.

Record of the trial Court was summoned by this Court. From the record of Execution File No. 6 of 2001 it appears that execution petition was

presented before Munsiff, Billawar on 5-9-2001, when notice of the same was ordered to be issued to the applicant, who is the only respondent

(Judgment debtor) in the said execution. Applicant was served with summon in the execution petition on 5-10-2001, as is evident from the report

of process server. She also affixed her thumb impression on the summon. She appeared before the executing Court on 11-10-2001 which was the

date fixed in the case. From the interim order passed on 11-10-2001, it appears that applicant appeared in person and she sought time to engage

counsel. She was allowed to do so by next date of hearing, which was fixed on 16-11-2001. During this interregnum, applicant approached this

Court and filed present application, which is duly supported with affidavit. Case of the applicant is that her counsel namely Mr. Gagan Basotra who

was engaged to conduct CSA No. 19/94 did not inform her about the judgment passed in CSA No. 19/1994.

Learned counsel for the applicant has further submitted that while considering the question of condonation of delay, the Court must take into

consideration surrounding circumstances for evaluating plea of condonation. In the present case, the applicant is an illiterate and belongs to a

remote village of Tehsil Billawar. The illiteracy itself is a factor which should weigh with the Court while considering the question of condonation. In

addition to this, what is urged is, that the order sought to be reviewed, itself is not legal. This Court while deciding CSA No. 19/94 did not take

into consideration earlier judgment of the High Court passed in Civil Revision No. 184/89 and the order passed in Reference No. 2 of 1993

whereunder not only right of the applicant as legal heir of deceased Beli Ram was acknowledged but her right to contest the maintainability of the

execution petition was also given recognition. He has further stated that the order of the executing Court declaring the decree as nullity and

inexecutable, has been wrongly set-aside by this Court in CSA No. 19/94. While opposing condonation, counsel for the non-applicant, Mr. J. P.

Singh has argued that the plea of applicant that she had no knowledge of the judgment passed in CSA No. 19/94, cannot be accepted in absence

of an affidavit by Mr. Gagan Basotra, who was the counsel for the applicant and who contested the case on her behalf till the delivery of the

judgment. He has contended that the counsel is not under any obligation to inform the litigant as per terms of engagement between the litigant and

the lawyer. Otherwise also, from the facts on record, it appears that the applicant had been diligent, in prosecuting and following the case all along,

the matter came to High Court three times and therefore, it cannot be said that she is an innocent illiterate lady who is not supposed to know the

mode and method of following the case.

Mr. P. N. Raina, learned counsel for applicant has referred to cases titled Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji

and Others, and M.K. Prasad Vs. P. Arumogam, para 3 (2, 4). Ratio of the judgment in case titled Collector, Land Acquisition, Anantnag and

Another Vs. Mst. Katiji and Others, is reproduced below :

The legislature has conferred the power to condone the 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 justifiably liberal approach in matters instituted in

this Court. But the message does not appear to have percolated down to all other Courts in the hierarchy. And such a liberal approach is adopted

on principle as it is realized that :

1...............................

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.

3.................................

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 non-deliberate delay."" Relevant part of the judgment in case titled

M.K. Prasad Vs. P. Arumogam, is also reproduced below :--

In construing S, 5 of the Limitation Act the Court has Lo keep in mind that discretion in the section has to be exercised to advance substantial

justice. The Court has the discretion to condone or refuse to condone the delay as is evident from the words ""may be admitted"" used in the section.

While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., held (paras

6 & 7) :

Section 5 of the Limitation Act provides for extension of period of certain cases. It lays down, inter alia, that any appeal may be admitted after the

period of limitation prescribed therefore when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such

period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause

within such period? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the

Judicial Commissioner against the appellant. He has held that ""within such period"" in substance means during the period prescribed for making the

appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must that he acted

diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial

Commissioner has held that ""within such period"" means ""the period of the delay between the last day for filing the appeal and the date on which the

appeal was actually filed"" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That

is why it is unnecessary for use to consider what is ""a sufficient cause"". In the present appeal. It has been urged before us by Mr. Andley, for the

appellant, that the construction placed by the Judicial Commissioner on the words ""within such period"" is erroneous.

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of

limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In

other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the

decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed.

The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone

delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf

should be exercised to advance substantial justice aS has been observed by the Madras High Court in Krishna v. Chathappan ILR(1889) Mad

269.

Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to

be exercised upon principles which well understood; the words ""sufficient cause"" receiving a liberal construction so as to advance substantial justice

when no negligence nor inaction nor want of bona fide is imputable to the appellant.

Again in the The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, and G. Ramegowda, Major and Ors Vs.

Special Land Acquisition Officer, Bangalore, this Court observed that the expression ""sufficient cause"" in Section 5 of the Limitation Act must

receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence

or deliberate inaction or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve

the interest of justice and not to defeat it. Again in this Court held that acceptability of explanation for the delay is the sole criterion and length of

delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the Court should normally condone the

delay. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party

and should compensate him accordingly. In that context the Court observed (para 9 of AIR) :

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 a want of acceptable explanation whereas in certain other cases, delay of a

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 revisional jurisdiction, unless the

exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refused to condone

the delay. In such cases, the Superior Court 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.

In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his

application filed u/s 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to

have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been made more vigilant

but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property,

concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment

impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent

for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary

costs. In the interest of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the

application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient

grounds exist for setting aside the ex parte decree as well.

Mr. J. P. Singh, learned counsel for respondents relies upon a judgment titled State of J & K v. Bashir Ahmed Bhat, 1999 (2) Cri LJ 587 of

which are reproduced as below :

Learned counsel for the respondent, Mr. Qayoom, has vehemently argued that the explanation tendered by the petitioner on facts is totally

bereft of ground realities. According to him, the judgment was delivered in the presence of the counsel for respondents in the writ petition.

Therefore, it cannot lie in the mouth of petitioners that they were not aware of the judgment delivered on 10th Sept. 1998. According to him, the

delay has been caused deliberately and the law does not permit to condone the delay on flimsy grounds which will otherwise affect the right

occurring to the respondent (writ petitioner). He has placed reliance on the judgment of the Apex Court in case P.K. Ramachandran Vs. State of

Kerala and Another, in which it has been held :

Law of limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes and the Courts

have no power to extend the period of limitation oh equitable grounds. The discretion exercised by the High Court (sic) thus, a (sic) proper nor

judicious. The order condoning the delay cannot be sustained. It needs a mention here that in the above said case the Apex Court found that the

High Court had not recorded any satisfaction that the: explanation for the delay was either reasonable or satisfactory which was ''essential pre-

requisite to condonation of delay.

Learned counsel for the petitioners across has argued that the Courts are taking a liberal view in matters regarding justification tendered for

condonation of delay and in this case also such view is solicited to be taken in view of the official wranglings which has caused some delay in filing

the appeal. Mr. Attar, AAG has relied on State of Haryana Vs. Chandra Mani and others, , a three bench judgment of the Apex Court has held as

under:

Section 5 of the Limitation Act gives power to the Court to admit the appeal or application after the prescribed period. The Supreme Court

generally adopts a liberal approach in condonation of delay finding some what sufficient cause to decide the appeal on merits. When the State is an

applicant, praying for condonation of delay it is common knowledge that on account of impersonal machinery and the inherited bureaucratic

methodology imbued with the note making, file-pushing and passing on the buck ethos, delay on the part of the State is less difficult to understand

though more difficult to approve, but the State represents collective cause of the community. Decisions are taken by officers agencies proverbially

at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional

or otherwise is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore,

certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but

what in the ultimate analysis suffers, is public interest. The expression ""sufficient cause"" should, therefore, be considered with pragmatism in justice

--oriented approach rather than the technical detention of sufficient cause for explaining every days delay......... The Court should decide the

matters on merits unless the case is hopelessly without merit.......

Thirdly, the Court to see as to what is the subject-matter involved in the case. In case the matter is such which has a stake on the Public

exchequer, reflects upon the Public Interest, or huge property is involved, then the matter would be different. The writ petitioner (respondent

herein.) was initially appointed as Village Level Worker for three months against a clear vacancy. The condition made in the order was that the

appointment shall last for three months or till the selection was made. Whichever would fall earlier. In order to adjust some blue eyed boy against

the post, the writ petitioner was appointed in a leave arrangement, as alleged, However, the final relief granted in the judgment by the learned single

Judge is that the writ petitioner be allowed to join till a regularly selected candidate joins. Therefore, in these circumstances, we do not see that this

order is of such a nature as would warrant a liberal view in favour of the petitioners. The Apex Court has time and again in a catena of authorities

held that liberal view should be given to the words ""sufficient cause"" mentioned in Section 5 of the Limitation Act but, at the same time, the criteria

for the acceptability of the explanation should be adhered to. In case N. Balakrishnan Vs. M. Krishnamurthy, the Apex Court no doubt has held

that length of delay is no matter, but the acceptability of the explanation is the only criterion for considering the request for condonation of delay.

Since the justification and explanation tendered is not tenable, being insufficient, the application for condonation of delay is rejected. Consequently,

the Letters Patent Appeal is dismissed as time barred.

From the ratio of various judgments referred to above what emerges is that while considering the plea of condonation, the facts and

circumstances of a particular case need to be taken note of. The fact that the applicant belongs to a remote village of Tehsil Billawar, is indisputed.

The applicant is an illiterate lady, is also evident from the record as she put her thumb impression on the summon served upon her in execution

proceedings as also on the Power of Attorney filed in this Court. This carries a reasonable presumption that she is an illiterate lady. Otherwise also,

there is nothing on record to rebut this fact. The question whether she had the knowledge of the judgment or she was unaware of the same being

not informed by the counsel, is a question which can only be decided on the basis of surrounding circumstances. If argument of Mr. J. P. Singh that

the applicant had been diligently following the litigation all along is accepted, then there is no reason of her not pursuing the case. Further if she had

the knowledge of decision dated 12-10-2000 passed in CSA No. 19/94, she, was sure to follow the case as her eagerness to take litigation to a

logical end, is evident from the record and checkered history of the case. The litigation is pending prior to 1973. Since the applicant had been

following the litigation all through, it can be safely inferred that she would have followed the matter even after the decision of this Court. In these

circumstances, it can be reasonably inferred that perhaps she was unaware of the decision. Plea of the applicant that she had no information as her

counsel did not inform her, cannot be brushed aside. From the record, it has become apparent that she was served with summon from the

executing Court on 5-10-2001 for her appearance on 11-10-2001. She did appear before the executing Court on 11-10-2001 and sought

opportunity to engage counsel for which next date was fixed on 16-11-2001. She approached the High Court on 7-11-2001 and on receiving

copy of the judgment on 20-11-2001, filed present application along with review petition on 29-11-2001. If a person is so diligent in seeking legal

remedy, it cannot be said that she has slept over after having knowledge of decision in CSA No. 19/94.

In view of the above, I am of the opinion that the applicant has succeeded in making out a case for condonation of delay. Otherwise also, the

rights of the parties should be substantially decided and no party should be allowed to suffer merely on some inaction and lapse.

As far the question whether the judgment sought to be reviewed, is legal or valid and calls for interference by way of review, is a question

which should not be entered upon in this application, least it may prejudice the case of one or other party. I, there fore, do not deem it necessary to

enter upon this question while considering the issue of condonation of delay.

This application is accordingly allowed and delay in filing review petition is condoned, subject to payment of costs of Rs. 2000/- to be

deposited in Advocates Welfare Fund within a period of four weeks. Review petition be listed for consideration after the costs are deposited.