Hussain vs Om Prakash

Pratap Krishna Lohra, J.—Appellant-defendant has filed this second appeal under Section 100 CPC to challenge the impugned judgment and decree dated 11th of January, 2013 passed by learned Additional District Judge No. 1, Udaipur (Lower Appellate Court), whereby learned Lower Appellate Court has affirmed the judgment and decree passed by Civil Judge (Senior Division) Mavli dated 19th october, 2006.

This appeal is filed after delay of 361 days, therefore, appellant has also moved an application under Section 5 of the Limitation Act for condonation of delay. Averments contained in the application reads as under:-

That the appellant has preferred the instant second appeal against decree and judgment award dated 11.01.2013.

That the decree and judgment was passed on 11.01.2013 and for the certified copy application was made on 16.1.2013 and the copy to be ready on 17.1.2013 and same was ready on 17.1.2013. The counsel represented the appellant assured him that he will inform him of the progress of the appeal as the presence of the appellant was not required after filing of the appeal, but the counsel did not inform him that judgment has been passed the appeal filed by him has been dismissed.

That thereafter as the appellant was not inform about the passing of the decree and judgment. As he was assured that the will be informed about the progress of the case, but since no information was given by the local counsel to him, then he contacted his counsel in the interregnum period so many times to know about the progress of the appeal, till that time the decree and judgment was not passed, but as the appellant being a resident of village Fatehnagar, which is far from Udaipur, could not contact his counsel regularly who represented the present appellant before the appellate court as the present appellant was having serious ailment and was under treatment and then he contacted to him on 07.04.2014, then only he came to know about the passing of the decree and judgment.

That thereafter as the appellant as being an old man was having serious ailment and also was not having any means of earning, but despite this the appellant contacted the present counsel on 9.04.2014, the present counsel advised him to come to Jodhpur, then the appellant along with the relevant papers came to Jodhpur 12.04.2014. The present counsel advised him to challenge the decree and judgment impugned. The appeal was drafted on the same i.e. 12.04.2014 as on 13.04.2014 and 14.4.2014 there was holidays. Same was filed on 15.04.2014.

That the delay caused in filling the appeal is due to that the appellant was not advised by the counsel to challenge the award. Same is bona fide and unintentional, circumstantial one and not deliberate same deserves to be condoned. The appellant has very good case on merit also.

It is therefore humbly prayed that the delay in filling the appeal may kindly be condoned and the appeal may kindly be heard on its merit.

I have heard learned counsel for the parties and perused the application.

Well it is true that a litigant cannot be made to suffer on account of omissions of a lawyer but some proof is required to be given that how and in what manner advocate was negligent in discharging its professional obligation.

In the application, the appellant has not averred that what action he has taken against the advocate, who represented his cause before the learned lower appellate Court.

There remains no quarrel that while exercising its judicial power and discretion, Court should adopt a liberal approach in construing word "sufficient cause", but liberal construction of the term does not mean that delay is to be condoned for mere askance and, even in cases where negligence and apathy of the litigant is clearly apparent and writ large. The expression "sufficient cause" is receiving a liberal construction so as to advance substantial justice remains unquestionable and the law Courts are construing the same utmost liberally. However, when negligence or inaction on the part of a litigant is clearly visible and there is lack of bona fide on the part of a party delay is not liable to be condoned.

It is trite that law of limitation is based on public policy and its precise object is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party''s own inaction, negligence or laches. Therefore, the discretion conferred on the appellate courts to condone delay may be exercised to farther the interest of justice when the party seeking condonation of delay has furnished sufficient cause for the delay. A total inaction or indolence on the part of a litigant cannot persuade a Court to exercise its discretion to condone the delay in favour of a litigant. If such liberal approach is adopted by the law Courts, then it may render law of limitation nugatory and otiose, eventually putting premium over the total inaction and dormancy of a litigant for his legal rights. The averments contained in the application in the totality of the facts and circumstances of the instant case are not at all inspiring confidence so as to persuade this Court to exercise its discretion for condonation of delay. The appellant has shown total callousness and apathy in availing the remedy of appeal by laying this appeal after inordinate delay of 361 days for which there is no cause much less sufficient cause.

Hon''ble Supreme Court in case of Basawaraj and Others Vs. The Spl. Land Acquisition Officer, AIR 2014 SC 746 : (2013) 13 JT 469 : (2014) 1 RCR(Civil) 603 : (2013) 10 SCALE 391 : (2013) 14 SCC 81 , while construing the expression "sufficient cause" and examining the intent of statute of limitation, has held as under:-

Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee, Mata Din v. A. Narayanan, Parimal v. Veena and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai.)

In Arjun Singh v. Mohindra Kumar-this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".

The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao.)

It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim. dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury''s Laws of England, Vol. 28, p. 266:

"605. Policy of the Limitation Acts.-- The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party''s own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project.)

While construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for laying an appeal gives rise a right in favour of the decree holder to treat the decree as binding between parties. In other words, on expiry of prescribed period of limitation the decree holder acquires a benefit under law of limitation to construe 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 is to be kept in mind by the Court is that if sufficient cause for excusing delay is shown by the party, Court in its discretion may condone the delay. It is needless to emphasize here that even after sufficient cause has been shown by a party, it is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act. Thus, the application under Section 5 of the Act deserves rejection.

Moreover, in the instant case, there is concurrent finding of fact, which is based on proper appreciation of evidence on record, and even on delving deep into the matter, I am unable to lay my hands on any substantial question of law involved in the matter requiring adjudication in exercise of second appellate jurisdiction. The substantial questions of law proposed by the appellant are also not inspiring confidence and cannot be construed as such. Further looking to the petty decretal amount i.e. Rs. 20,500/-, it is not desirable to entertain this second appeal.

Therefore, the application under Section 5 of the Limitation Act is, hereby, rejected. The appeal is also dismissed on the ground of delay as well as for concurrent findings recorded by the courts below and petty decretal amount.