DEWAN CHAND vs CHUNI LAL AND ANOTHER

This is an application seeking condonation of delay in filing the application for restoration of the Civil 2nd Appeal No. 21/2006,

dismissed for non prosecution vide order dated 02.3.2007.

It is submitted by the applicant that the Civil 2nd Appeal filed by the applicant  Dewan Chand which was pending adjudication

in this court was dismissed in default of appearance on 02.3.2007 due to non appearance of the appellant and his counsel. It is

claimed by the applicant that due to some criminal case registered against him, he along with all  male members of his family, remained in

jail for a pretty long time and were in detention on the date the Civil 2nd Appeal filed by the applicant was dismissed. It is further

submitted that they were released from the jail only in the month of June, 2013. It is also submitted that the Civil 2nd Appeal though filed by

the applicant was being pursued by his brother who had engaged  Shri S.A. Salaria, Senior Advocate as counsel in the appeal. It is pleaded that

neither the learned senior counsel informed them about the dismissal nor they could otherwise know that their appeal has been dismissed.  It was

only when Sub Judge, Reasi decided the suit pending before him titled Pawan Kumar Vs Dewan Chand vide its judgment and decree dated

31.7.2014 in which reference to the dismissal of the appeal of the applicant had been made, the applicant acquired the knowledge. Immediately

steps were taken and the appeal was preferred. This is how, the applicant has made effort to explain the long delay in filing the restoration

application.

The respondents have filed their objections and have vehemently opposed the condonation application on the ground that the plea taken in the

application for explaining the long delay of 5457 days does not constitute sufficient cause and, therefore, the application cannot be allowed. It is

submitted that the applicant was negligent in prosecuting the appeal and the same was rightly dismissed by the Court.Â

Having heard learned counsel for the parties and perused the record, I am of the considered opinion that the delay though very huge, deserves to be

condoned for the reasons hereinafter mentioned.

Before we examine the merits of the application preferred by the applicant seeking condonation of delay, it would be worthwhile to take note of the

settled parameters, which are required to be taken into consideration while dealing with an application for condonation of delay and the approach

required to be adopted while considering the grounds for condonation of such delay. The Supreme Court while dealing with the question of delay in

filing appeal summarize the position of law in Paragraph Nos. 21 and 22 of the judgment in the case of Esha Bhattacharjee Vs. Managing Committee

of Raghunathpur Nafar Academy (2013) 12 SCC 649Â which for facility of reference are reproduced here under:-

21.1. (i) There should be a liberal, pragmatic, justice oriented, nonpedantic 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.

21.2. (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.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should be given undue and uncalled for emphasis.

21.4. (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.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (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.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8 (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.

21.9 (ix) The conduct, behavior 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.

21.11 (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.

21.12 (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.

21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the

courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically

subjective.

22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving

consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant

manner requires to be curbed, of course, within legal parameters.â€​

Similarly, in the case of Oriental Aroma Chemical Industries Ltd. Vs. Gujrat Industrial Development Corporation (2010) 5 SCC 459, in paragraph

14 observed thus:

“14…... 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’’

It is axiomatic that while considering an application for condonation of delay, no straitjacket formula is prescribed to come to the conclusion if the

sufficient and good grounds have been made out or not and Courts while dealing with the application for condonation of delay ought to adopt a liberal,

pragmatic, justice oriented and non-pedantic approach and in the aforesaid context, the term sufficient cause should be understood and interpreted.Â

In the light of aforesaid principles laid down by the Supreme Court, the present application may be examined.Â

The applicant has given sequence of events to explain long delay. Though the explanation tendered is not very convincing yet the fact remains that

on the day the appeal was dismissed for non prosecution, the applicant alongwith all male members of his family was in jail in connection with

criminal case . It is not denied that he came out from the jail in the month of June, 2013 and, therefore, during this period, he could not be

expected to have information with regard to status of appeal . After coming out of the jail and gathering himself, he appears to have made efforts

to know the status of his case and ultimately found that his appeal has since long been dismissed for non prosecution. Time and again, the Supreme

Court has emphasized need to adopt liberal, pragmatic  and justice oriented approach while dealing with the application for condonation of

delay. As observed by the Supreme Court in Oriental Aroma Chemical Industries ( Supra), the law of limitation is founded on public policy and the

period of limitation is not prescribed for destroying rights of the parties but to ensure that they do not resort to dilatory tactics and delay adjudication.Â

In light of aforesaid principles laid down by the Supreme Court, I find that sufficient cause has been shown by the applicant in fling the restoration

application belatedly, deserving exercise of discretion in favour of the applicant for balancing scale of justice when technicalities are peted against

substantial justice, the later must prevail. Since it is a case of huge delay of 5457 days as such, the respondents also deserve to be compensated

adequately.Â

Accordingly, this application is allowed. This shall, however, be subject to payment of Rs.20,000/- as cost to be paid by the applicant to the

respondents. Â

Let restoration application No. 14/2014 come up for consideration in the Ist week of July, 2018.