Haji Ghulam Qadir Bhat vs Haji Abdul Gani Bhat

Janak Raj Kotwal, J.—Heard. A suit for partition instituted by the petitioner on 04.02.2006 was dismissed in default by the trial Court on

09.09.2008. Petitioner (plaintiff) filed an application for restoration of the suit after inordinate delay of 1350 days on 31.05.2012, accompanied

with an application for condonation of delay u/s 5 of the Limitation Act (for short the Act) on 31.05.2012. In seeking condonation of delay as also

restoration of the suit, petitioner contended that he has been suffering from renal disease and undergoing treatment continuously from 10.07.2007

and therefore, had lost contact with the lawyer engaged by him, who had undertaken to pursue the case. After gaining some health, he contacted

his lawyer fifteen days prior to filing of the application, who, however, could not provide him any information about the case and with his own

efforts he came to know that his suit has been dismissed in default on 09.09.2008.

Respondent (defendant) opposed both the applications by filing objections on different grounds. Learned trial Court dismissed the application

for condonation of delay vide order dated 04.06.2013. Petitioner has impugned the said order in this revision petition.

Mr. Farooq Wani, learned counsel for the petitioner, pointed out and submitted that learned trial Court has dismissed the application without

affording the petitioner opportunity to prove the factum of his ailment and impossibility to contact his counsel. He submitted further that petitioner's

valuable right to property is involved in the suit for partition with his brother so learned trial Court should have proceeded liberally, allowed the

petitioner to prove his plea by leading evidence and taken a liberal view in condoning the delay.

Impugned order on its plain reading would show that learned judge of the trial Court, while elaborately referring to contentions of the parties and

law in regard to condonation of delay, has shown inappropriate approach and seriousness in dealing with the ground on which condonation was

sought and has made a statement, which does not reflect correct legal position. I may quote the operative part of the order:

Taking into consideration the lot of judgments which have been discussed above I am of the opinion that the application in hand cannot be allowed

as this court cannot extend its power to condone the delay of 1350 days. Although it has been held that the liberal expression of section 5 has to

be given in order to meet ends of justice but how much liberal it has not been explained anywhere. I am of the opinion that this court cannot

condone the delay of 1350 days which is a very large period. Further for allowing this application ""sufficient cause"" must have been shown.

Although the applicant has placed photocopies of the prescription of Dr. Muneer's Kidney Hospital wherein his date of admission and Date of

discharge is 10.07.2007 and nil respectively which not clarify for how much time he was bed ridden and hence cannot be relied upon. Hence this

application stands dismissed and office is directed to consign it to records after its due completion.

View taken by the learned judge of the trial Court indicates as if a prayer for condoning a long or, say, inordinate, delay need not be taken very

seriously and also that court has no power to condone such a delay. This is not correct view. It needs to be stated in this regard that no outer limit

to duration of delay has been prescribed for making an application for condonation of delay u/s 5 of the Act. Condonation can be sought and may

be allowed irrespective of its duration or howsoever long the delay may be. What is, however, important is that the party seeking condonation has

to satisfy the Court that he had sufficient cause for not preferring the appeal or making application within the prescribed period. Not only that,

party has also to satisfy the court that he had sufficient cause for not doing so right upto the time when the same was actually done.

Court dealing with an application for condonation of delay has to deal with two aspects. Firstly, that alleged cause of delay is sufficiently made

out and secondly, that the cause is sufficient. Cause of delay mostly involves a point of fact and the applicant/appellant will have to prove it by

producing sufficient evidence/material and for that he must be provided sufficient opportunity.

On perusal of minutes in the trial Court file, it is seen that respondent (defendant) filed objections on 02.03.2013 and on the same day learned

Court adjourned the case for hearing arguments. Given the cause alleged by the petitioner, learned Court should have asked him and provided

sufficient time to prove the cause by leading evidence in prescribed manner. Existence and sufficiency of the cause should have been determined

and adjudicated upon after that. Having not done so, learned trial Court has not exercised its discretion property and impugned order does not

sustain.

For aforementioned, this petition succeeds, impugned order is set aside and learned trial Court is directed to rehear the application in light of the

observation made above. Record of the trial Court be sent down alongwith copy of this order.