Chetan vs Jagroop Singh And Others

Vivek Singh Thakur, J

Petitioner has approached this Court against order dated 10.04.2019, passed by the Motor Accident Claim Tribunal-II, (in short ‘MACT’)

Kangra at Dharamshala, Circuit at Nurpur, H.P., in Civil Misc. Application No.13-N/IV/2015, titled as Chetan vs. Jagroop Singh & another, whereby

application preferred by the petitioner under Section 5 of the Limitation Act (in short ‘Limitation Act’), for condonation of delay in filing

application under Order 9 Rules 4 and 8 of Civil Procedure Code (CPC), read with Section 151 of CPC, for restoration of MACP No.12-N/13/09,

titled as Chetan vs. Jagroop Singh etc., has been dismissed.

On 26.11.2009, petitioner had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V.

Act’) for compensation against respondents and Insurance Company, name whereof was to be disclosed by respondents, for suffering multiple

injuries in a road accident caused by car being driven by respondent No.1, which was owned by respondent No.2. Petition remained pending

adjudication before MACT-II at Dharamshala till 22.08.2013.

Thereafter, it was transferred to Circuit Court of MACT-II at Nurpur and before Circuit Court, at Nurpur on 25.04.2014, it was adjourned for

09.05.2014 in presence of learned counsel for parties. Order dated 25.04.2014 reads as under:-

“25.04.2014

Present:- Sh.Sachit Sharma Ld.Advocate vice for the petitioner.

Sh.Pankaj Chauhan Ld. Advocate for respondent.

Reply to the application under order 6 Rule 17 CPC read with order 1 Rule 10 CPC and section 151 not filed. Time prayed. Considered and allowed.

Now for reply and consideration file be listed on 9.5.2014.â€​

Record reveals that on 09.05.2014, it was taken up by the MACT-II at Dharamshala and for non representation of and on behalf of the petitioner, it

was dismissed in default.

It is case of the petitioner that petitioner belongs to Village falling in jurisdiction of Nurpur and, therefore, case was transferred to Circuit Court at

Nurpur and was pending adjudication at Nurpur till 25.04.2014 on which date it was adjourned for 09.05.2014 and in the order dated 25.04.2014 it was

nowhere mentioned that on 09.05.2014 case would be listed at Dharamshala and, therefore, petitioner and his learned counsel were under the

impression that case was to be listed at Nurpur in Circuit Court. However, on 09.05.2014, petitioner on reaching Court at Nurpur had found that there

was no Circuit Court at Nurpur and on inquiry from the Advocate, he was informed that now as and when Circuit Court would be available at Nurpur,

the case would be taken and notice of next date of hearing would be issued and, therefore, petitioner was advised to wait and as such kept on waiting,

but ultimately when no notice was received till December 2014, petitioner approached learned counsel again, whereupon, on inquiry, it transpired that

petition had been taken up for hearing at Dharamshala on 09.05.2014 and was dismissed in default for non appearance of and on behalf of the

petitioner and on the very same day i.e. 19.12.2014 when it came in notice copy of order sheet was applied which was attested and ready on

23.02.2015, but no proposed date of delivery of copy was given by the Copying Agency as also evident from the stamp of Copying Agency, the copy

was received on 23.03.2015 and thereafter applications under Order 9 Rules 4 and 8 CPC and under Section 5 of Limitation Act were prepared on

31.03.2015 and filed on 02.04.2015.

Points for determination were framed on 08.06.2017 and after examination of witnesses by the parties, application under Section 5 of Limitation Act

was dismissed on 10.04.2019 which has been assailed in present petition.

Learned counsel for the petitioner has submitted that petitioner, after filing claim petition on 26.11.2009, was continuously pursuing the same for five

years, till the time when it was dismissed in default. Petitioner had received injuries, for treatment whereof he had also incurred expenditure and

suffered losses, and for recovery whereof, claim petition was preferred by him and, therefore, there was no reason for the petitioner for not appearing

or to remain absent deliberately or intentionally as he was not going to be benefited in any manner by getting his petition dismissed in default.

It is also submitted by learned counsel for the petitioner that even if it is considered that learned counsel for the petitioner was well versed about the

fact that when there was no Circuit on 09.05.2014 at Nurpur, petition would be taken up at Dharamshala, then also, no negligence or dereliction of

duties can be attributed on the part of the petitioner, who is agitating for just and fair compensation since 2009 and for any fault on the part of the

Advocate, petitioner should not suffer particularly keeping in view the provisions of Section 166 in beneficiary legislation M.V. Act and for the reason

that on receipt of information of accident and details of victims by the MACT, a notice is sent to the victims by the MACT informing and calling them

to pursue their claim under the M.V. Act, if any.

It is submitted by learned counsel for the petitioner that the MACT has misappreciated and misread the evidence, including statements of the

petitioner and RW-1 Jagroop Singh and further that findings returned by the MACT, that there is nothing on record to infer the actual date of

submission of application for copies of zimini orders, are also perverse as from the stamp of the Copying Agency the date of application as 19.

12.2014 is very much evident.

Learned counsel for the petitioner has submitted that procedural Rules are handmaid and they should be applied for doing substantial justice by

adopting pragmatic justiceable approach particularly in proceeding under beneficial legislation like M.V. Act.

To substantiate her plea, learned counsel for the petitioner has relied upon various pronouncements in State of Nagaland vs. Lipok AO and others,

(2005) 3 SCC 752; Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459; S.

Ganesharaju (Dead) through LRs. Vs. Narasamma (Dead) through LRs. And others, (2013) 11 SCC 341; Dhiraj Singh (Dead) through Legal

Representatives and others vs. State of Haryana and others, (2014) 14 SCC 127; B.S. Sheshagiri Setty and others vs. state of Karnataka and others,

(2016) 2 SCC 123; and Mahendra Rathore vs. Omkar Singh and others, (2002) 10 SCC 673.

Mr.Ajay Sharma, learned Senior Counsel, under instructions, has vehemently opposed the petition and has submitted that on 25.04.2014, next date

of hearing 09.05.2014 was fixed in presence of the petitioner and his learned counsel and dates of Circuit of the Court are circulated well in advance a

month earlier to the Circuit and, thus, it was within the knowledge of the Advocate of the petitioner that on 09.05.2014 there was no Circuit at Nurpur

implying that the next date of hearing as 09.05.2014 was fixed for taking up the matter at Dharamshala. He has further submitted that there is

unambiguous admission on the part of the petitioner that he was present in the Court on 09.05.2014 at Dharamshala, but he had not opted to appear in

the Court and, therefore, he is not entitled for revival of claim petition. It has further been submitted that even if it is considered that it was not in the

knowledge of the petitioner that case was fixed at Dharamshala, then also petitioner remained sleeping till December 2014 and even after having

knowledge of dismissal of petition in December 2014, application for restoration was filed in April 2015 and there is nothing on record to explain the

inordinate delay in filing the application for restoration of claim petition. It has further been submitted, in the facts and circumstances of the case, that

the law cited on behalf of the petitioner is of no help to the petitioner.

It is further submitted on behalf of respondent No.2 that substantive law is that application made after prescribed period shall be dismissed as

provided under Section 3 of the Limitation Act. Whereas, Section 5 is a discretion conferred upon the Courts to condone the delay for sufficient cause

and in present case, no sufficient cause has been proved on record. Therefore, there is no scope of interference in the impugned order.

Mr.Roop Lal Chaudhary, learned counsel, for respondent No.1, adopting arguments advanced on behalf of respondent No.2, has justified the

findings returned by the MACT-II by referring reasons assigned for that in the impugned order.

In the pronouncement of Supreme Court referred by the petitioner in Lipok AO’s case supra, it has been held that pragmatic approach has to

be adopted, and when substantial justice and technical approach are pitted against each other former has to be preferred. The proof of sufficient

cause is a condition precedent for exercise of extra ordinary discretion vested in the Court and it is not the length of the delay which counts but the

sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using discretion and Section 5 of the

Limitation Act is to be construed liberally so as to do substantial justice to the parties which contemplates that Court has to consider the reasons

adduced for causing delay are plausible and sufficient.

In Oriental Aroma Chemical Industries Limited’s case supra, it has been held as under:-

“14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation

with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is

that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within

which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if

sufficient cause is shown for not availing the remedy within the stipulated time.

The expression “sufficient cause†employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to

enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in

dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of

short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107, N.

Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 and 9 Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106.â€​

In S. Ganesharaju’s case supra, the Supreme Court has observed as under:-

“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 period of limitation, generally

as a normal rule, delay should be condoned. It has also been observed that the rules of limitation are not meant to destroy or foreclose the right of

parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.â€​

In Dhiraj Singh’s case supra, the Supreme Court while referring Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107, has held that

substantive rights should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations, rather approach

of the Court has to be pragmatic and not pedantic. The Supreme court has reiterated the same by referring another pronouncement as under:-

“16. The principles regarding condonation of delay particularly in land acquisition matters, have been enuncitiated in Collector, Land Acquisition,

Anantnag v. Mst. Katiji, (1987) 2 SCC 107, wherein it is stated in para 3 as under: (SCC p. 108)

 “3. 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 justiceâ€"that being the life -purpose for

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 of 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 be decided on merits 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 pragmatic manner.

(4) 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.

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

(6) It must be grasped that 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.â€​â€​

(emphasis in original)

In B.S. Sheshagiri Setty and others’ case supra, it has been observed that when justice is at stake, 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.

In Mahendra Rathore’s case supra, it has been observed by the Supreme Court that in matters of claim petitions under MACT, justice-

oriented and not too technical or pedantic approach is expected to be adopted by the Courts particularly when the application sought to be restored is

in a claim case arising out of a motor accident, as refusal to restore the claim petition, occasions failure of justice particularly when reasons for delay

moving applications for restoration are there.

A Coordinate Bench of this Court in CMPMO No.14 of 2015, decided on 19.06.2015, titled as Neelam Kumari vs. Jogender Singh and others,

after referring various pronouncements of Supreme Court, has concluded that it is error on the part of Court to dismiss the application solely on the

ground of delay without taking into consideration the humanist rule that procedure should be the handmaid, not the mistress of legal justice and it

always vested with the residuary power to act ex debito justitiae where otherwise it would be wholly inequitable.

Findings returned by the MACT that there is nothing on record that application for receiving copies of zimini orders was filed on 19.12.2014 is

perverse as it is evident from the stamp of Copying Agency affixed on the copy of order sheet Ex.AW.1/B that copy was applied on 19.12.2014 and

proposed date of delivery for the copy was not given as in the stamp of Copying Agency against clause (g) it is mentioned as NA. Therefore, plea of

the petitioner that application was filed on 19. 12.2014 and no date of delivery was given by the Copying Agency is substantiated by stamp of the

Copying Agency. Perusal of statement and cross-examination of petitioner (AW-1) reflects that MACT (II) has picked a sentence in isolation and has

used it against the petitioner. Whereas, it was in continuation of earlier sentence wherein petitioner had accepted the suggestion put to him that it was

correct that his Advocate had been giving him a slip of next date of hearing with further statement that after 25.04.2014 he had to appear on

09.05.2014 at Nurpur and on 09.05.2014 he had come to the Court. Therefore, his deposition that he had come to the Court on 09.05.2014 is with

reference to his presence in the Nurpur Court as in the previous lines he has clearly stated that he had appeared in Court at Nurpur on 09.05.2014.

Though, in his statement RW-1 Jagroop Singh has stated that petitioner was present in the Court at Dharamshala on 09.05.2014 but had not appeared

deliberately and intentionally in the Court is also an afterthought and deserves not to be taken into consideration as in the reply filed by and on behalf

of the said witness, no such plea was ever taken even remotely and, therefore, statement in absence of pleadings deserves to be discarded particularly

in the light of statement of petitioner.

In order dated 25.04.2014, it is not clearly mentioned that where the case shall be taken on next date of hearing. Therefore, by extending benefit of

doubt in favour of the petitioner, balance of interest of justice lies in his favour particularly keeping in view that claim petition has been filed under the

beneficial provisions of legislation and there was no benefit to the petitioner in getting his petition dismissed in default and in not filing application for

restoration thereof even after having knowledge thereof.

In the light of pronouncements of the Supreme Court and Coordinate Bench of this Court and considering facts and circumstances of the case, I

am of the considered opinion that delay in filing the petition stands satisfactorily explained by giving plausible and satisfactory explanation and, findings

returned by the MACTâ€"II, Kangra at Dharamshala, Circuit at Nurpur, H.P., are contrary to record and not sustainable.

Accordingly, order dated 10.04.2019 is set aside and application filed under Section 5 of the Limitation Act alongwith application filed under Order 9

Rules 4 and 8 CPC are directed to be registered in the MACT-II with direction to the MACT to adjudicate the same in the light of observations made

hereinabove as expeditiously as possible on or before 30.11.2021.

Parties are directed to appear before the MACT-II on 10.09.2021 at Nurpur.

Records be returned.

Petition stands disposed of, in the aforesaid terms, so also pending application(s), if any.