Hitendra Kumar Diwan vs Smt. Kiran Verma and Others

N.K. Agarwal, J.—The instant appeal is directed against the award dated 04.07.2006, passed by the IIIrd Additional Motor Accident Claims Tribunal, Jagdalpur (for short ''the Tribunal'') in miscellaneous claim case No. 01/05, whereby and whereunder the appellant''s application filed under Order 9 Rule 13 of CPC for setting aside exparte award has been dismissed holding it as time barred.

The brief facts of the case are that, on 16.12.1998, Tribunal passed the award in claim case No. 21/97 alongwith other claim case Nos. 22/97, 23/97 and 24/97, awarding compensation in favour of claimants holding the appellant herein liable as owner of the vehicle, exonerating the insurance company from its liability to pay compensation on the ground of breach of policy. The Tribunal proceeded ex- parte against the appellant on 27.07.1998 and thereafter, award was passed ex-parte against the appellant.

The appellant herein filed an application under Order 9 Rule 13 of CPC alongwith application u/s 5 of the Limitation Act inter-alia on the ground that the appellant has engaged the counsel and used to appear through his counsel in the case and only in case of necessity the appellant personally used to appear before the Tribunal. He came to know about the award dated 16.12.1998 on 09.04.2005 through his Advocate friend Shri Arun Das and then he came to know that on 27.07.1998 the Tribunal has proceeded ex-parte against him. It was further stated that in other similar cases, the insurance company has been held liable. His Advocate never informed him about the ex-parte proceeding in the case, and therefore, ex-parte decree award deserves to be set aside and the delay, if any, deserves to be condoned.

The appellant examined himself but none has been examined by the respondent. The court below vide its order impugned, dismissed the application filed by the appellant holding it as time barred.

Shri Prafull Bharat, learned Counsel appearing for the appellant, by placing reliance upon the judgment of Supreme Court in cases of N. Balakrishnan v. M. Krishnamurthy1 and M.K. Prasad v. P. Arumugam2 submits that the court below has erred in dismissing the appellant''s application for setting aside ex-parte award, as well as the application for condonation of delay.

Per contra, Shri Sanjay S. Agrawal, learned Counsel appearing for respondent No. 7/insurance company, by placing reliance upon the judgment of Supreme Court in case of P. Mani Moopanar v. K. Rajammal and Ors. submits that the court below has rightly dismissed the application and the order deserves to be upheld.

I have heard the counsel appearing for the parties, perused the order impugned and records of court below.

As per the evidence adduced by the appellant herein, his Advocate Shri Tarun Chouhan assured him that the appellant will not be required to attend the court personally and whenever his presence would be necessary, he will call the appellant. On 27.07.1998 when the case was proceeded ex-parte against the appellant, the appellant was neither called nor informed by his Advocate. He only came to know about the ex- parte award on 09.04.2005 on the basis of information received from Shri Arun Das i.e. friend of appellant. In cross examination, para 18, it has been stated that after filing of written statement in the year 1997 the appellant is not in touch with his Advocate till now.

The Supreme Court in case of N. Balakrishnan (Supra) has observed in para 8 to 13 as under:

The appellant''s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

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 refuses 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 untrammelled 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. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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 put to litigation). Rules of limitation are not meant to destroy the rights 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 in 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" u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality.

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 the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite 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.

The Supreme Court in case of M.K. Prasad (Supra) has observed in para 10 as under:

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 more vigilant but 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 interests 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.

The Supreme Court in case of P. Mani Moopanar (Supra) has observed in para 4 and 5 as under:

The High Court was required to go into the question of sufficiency of cause shown to condone the inordinate delay of 2598 days which it did not do and, instead, proceeded to allow the revision petitions on taking an overall view of the matter on merits.

In our view, the High Court has erred in reversing the order of the trial court refusing to condone the delay. It was open to the High Court to accept the explanation given by the respondents for condoning the delay but, without setting aside the findings of the trial court on the sufficiency of cause shown, it was not permissible to the High Court to enter into the merits of the dispute and condone the delay.

Further, the Supreme Court in case of Salil Dutta v. T.M. and M.C. Private Limited4 has observed in para 5, 7 and 8 as under:

Since the judgment under appeal is exclusively based upon the decision of this Court in Rafiq it is necessary to ascertain what precisely does the said decision say. The appellant, Rafiq had preferred a second appeal in the Allahabad High Court through an advocate. His advocate was not present when the second appeal was taken up for hearing with the result it was dismissed for default. The appellant then moved an application to set aside the order of dismissal for default which was dismissed by the High Court. The correctness of the said order was questioned in this Court. The matter came up before a Bench comprising D.A. Desai and Baharul Islam, JJ. D.A. Desai, J. speaking for the Bench observed thus: (SCC p. 789, para 3)

The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court''s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.

The question is whether the principle of the said decision comes to the rescue of the defendant respondent herein. Firstly, in the case before us it was not an appeal preferred by an outstation litigant but a suit which was posted for final hearing seven years after the institution of the suit. The defendant is a private limited company having its registered office at Calcutta itself. The persons in charge of the defendant-company are not rustic villagers nor they are innocent illiterates unaware of court procedures. Prior to the suit coming up for final hearing on June 9, 1988 the defendant had filed two applications whereupon the court ordered that they will be considered at the time of the final hearing of the suit. The plaintiff''s case no doubt is that the said applications were part of delaying tactics being adopted by the defendant-tenants with a view to protract the suit. Be that as it may, the defendant thereafter refused to appear before the court. According to the defendant, their advocate advised them that until the interlocutory applications filed by them are disposed of, the defendant need not appear before the court which means that the defendants need not appear at the final hearing of the suit. It may be remembered that the court proposed to consider the said interlocutory applications at the final hearing of the suit. It is difficult to believe that the defendants implicitly believed their advocate''s advice. Being educated businessmen they would have known that non-participation at the final hearing of the suit would necessarily result in an adverse decision. Indeed we are not prepared to believe that such an advice was in fact tendered by the advocate. No advocate worth his salt would give such advice to his client. Secondly, the several contradictions in his deposition which are pointed out by the Division Bench in the impugned order go to show that the whole story is a later fabrication. The following are the observations made in the judgment of the Division Bench with respect to the conduct of the said advocate: "We found that the said learned advocate conducted the proceedings in a most improper manner and that his absence on June 10, 1988 and on subsequent date was not only discourteous but possibly a dereliction of duty to his client ... the learned advocate had forgotten his professional duty in not making inquiry to the court as to what happened on June 10, 11 and 13, 1988 ... the learned advocate acted in a most perfunctory manner in the matter and the learned advocate dealt with the matter in a most unusual manner. We have also found that the said learned advocate had made serious contradiction in the deposition before the court below. The learned advocate in his deposition stated that he did not file an application for adjournment on June 9, 1988. But from the record it was evident that it was on the basis of the application filed on June 9, 1988, the case was adjourned for cross- examination of the witnesses whose examination was called on the next date." The above facts stated in the deposition of the advocate show that he indeed made an application for adjournment on June 9, 1988 to enable him to cross-examine the witnesses on the next date. Therefore, his present stand that he advised his client not to participate in the trial from and including June 9, 1988 onwards is evidently untrue. We are, therefore, of the opinion that the story set up by the defendant in his application under Order 9 Rule 13 is an after-thought and ought not to have been accepted by the Division Bench in its order dated March 3, 1992 - more particularly when it had rejected the very case in its earlier judgment dated July 8, 1991.

The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq1 must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear before the court. Maybe, it was part of their delaying tactics as alleged by the plaintiff. Maybe not. But one thing is clear - they chose to non- cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.

In view of law laid down by the Supreme Court in the dicta of above referred cases, the position of law may be summarized as under:

i. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.

ii. 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.

iii. Even though the appellant appears not to be as vigilant as he ought to have been, yet if his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant then his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation. iv. The trial court was required to go into the question of sufficiency of cause shown to condone the inordinate delay.

v. It is open to the High Court to accept the explanation given by the respondents for condoning the delay but, without setting aside the findings of the trial court on the sufficiency of cause shown, it is not permissible to the High Court to enter into the merits of the dispute and condone the delay.

vi. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief.

By applying the aforesaid proposition of law in the facts and circumstances of the present case, it is clear that the appellant has been proceeded ex-parte not only in one case but in claim case Nos. 21/97, 22/97, 23/97 and 24/97. He is not rustic villagers, but is bus owner and further he is not innocent litigant unaware of court procedure. As per his own statement, he never tried to contact his counsel after 1997 till 2005 i.e. for about 7-8 years. Every litigant knows that in claim case/civil suit, the parties are required to adduce evidence after filing of written statement. It is highly improbable that the appellant/litigant will not keep him in touch with his Advocate for a period of 7-8 years without their being gross negligence on his part. More so, when the litigant/party is businessman who knows where his interest lies.

The case on hand appears to be a case of gross negligence of appellant in prosecuting his case. Although Section 5 of Limitation Act must receive a liberal construction so as to advance substantial justice and generally delay may be condoned in the interest of justice but where a litigant is so grossly negligent that he has not taken care of his case for about 7-8 years, then it cannot be said that court below has exercised its discretion in rejecting the application for condonation of delay in an arbitrary manner.

From the aforesaid circumstance of the case, this Court is of the opinion that the appellant has failed to show sufficient cause for condoning the delay in filing the application for setting aside ex-parte award.

In view of foregoing, in the considered opinion of this Court, the appeal being devoid of substance is liable to be and is hereby dismissed. No order asto costs.