Inderjit Kapani vs Manoramabai W/O. Shri S.N. Tripathi & Another

The appellant/plaintiff filed the suit seeking decree of specific performance and permanent injunction. Vide judgment and decree dated 19.11.2004, the

suit has been dismissed. Thereafter, the plaintiff has filed the present appeal.

According to the plaintiff, the respondent/defendant No.1 had entered into an agreement to sale dated 22.3.1980 with Gopikishan for a consideration

of Rs.75,000/-. Unfortunately, Gopikishan expired on 8.3.1985 without executing the sale-deed. Later on, the defendant No.1 being daughter of

Gopikishan cancelled the aforesaid sale-agreement and executed the sale-deed in favour of respondent/defendant No.2. Thereafter, the plaintiff filed

the suit for specific performance of the contract, declaration and permanent injunction against defendants No.1 and 2.

The learned trial Court after framing the issues vide impugned judgment and decree has dismissed the suit holding that the plaintiff has failed to

prove the agreement to sale as well as acquisition of title by way of adverse possession. Hence, the present first appeal before this Court.

During pendency of this appeal, the respondent No.2 â€" Gangadhar expired on 3.12.2011. The appellant filed an application under Order 22 Rule 4

of the C.P.C. (I.A. No.903/2012). By order dated 2.5.2012, this Court has rejected the said application, meaning thereby, the appeal stood abated

against respondent No.2.

On the next date of hearing i.e. 30.8.2013, learned counsel appearing on behalf of respondents No.1 and 2, pleaded “no instructions†and this

Court directed for issuance of S.P.C. to respondent No.1. Despite issuance of S.P.C., no one had appeared on behalf of respondent No.1.

During his life time, the respondent No.2 has sold the suit property to Smt. Sadhna Bhandari and Smt.Indubala. The appellant filed an application

under Order 1 Rule 10 of the C.P.C. (I.A. No.4744/2013) on 6.8.2013 stating that now, subsequent purchasers are necessary party hence they be

added as respondents No.3 and 4 in this appeal. The appellant has also filed an application under Order 6 Rule 17 of the C.P.C. (I.A. No.4745/2013).

This Court issued the notices to proposed respondents No.3 and 4 and after service to them, Shri Godha ld counsel appeared on behalf of respondent

No.3 and raised an objection that the present appeal has already been abated and now same is liable to be dismissed. Again, the S.P.C. was issued to

respondent No.1 by this court. On 17.4.2017, the appellant filed an application under Order 22, Rule 10-A of the C.P.C. seeking direction to the

respondents to disclose about the name of legal heirs of respondent No.2 who died on 3.12.2011.

Now, the appellant has filed an application under Order 22 Rule 9 read with Section 151 of the C.P.C. (I.A. No.16041/2017) for setting aside the

abatement. He has also filed an application u/s. 5 of the Limitation Act (I.A. No.16094/2017) for condonation of delay of 5 years and 210 days. The

proposed respondents No.3 and 4 filed reply to the said applications by opposing the prayer of setting aside of abatement and condonation of delay.

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

The plaintiff had entered into an agreement to sale with father of respondent No.1. Before he could execute the sale-deed or before the suit could

be filed, he expired. Thereafter, the respondent No.1 being daughter, sold the suit property to respondent No.2, therefore, the plaintiff filed the suit

against both of them. The respondent No.2 who purchased the suit property before filing of the suit,is a necessary and only contesting party in the suit

as well as in appeal. The respondent No.2 has expired on 3.12.2011 and before his death, he had executed the sale-deed in favour of respondents

No.3 and 4, therefore, the provisions of Section 52 of the Transfer of Property Act would apply because the sale-deed was executed under the

principles of pendente lite, therefore, the respondent No.2 was a necessary party and on account of his death on 3.12.2011, this appeal stands abetted.

The application filed by the appellant under Order 22 Rule 4 of the C.P.C. has already been rejected and stands closed 2.5.2012 which has not

been challenged for a period of more than 5 years and now, appellant has filed an application under Order 22 Rule 9 of the C.P.C. for setting aside

the abatement along with an application u/s. 5 of the Limitation for condonation of delay. The appellant had knowledge about the death of respondent

No.2 and passing of the order on 2.5.2012 passed by this Court rejecting the application under Order 22 Rule 4 of the C.P.C., therefore, the present

application for setting aside of abatement is hopelessly barred by limitation and such a huge delay of 5 years and 210 days cannot be condoned.

The Coordinate Bench of this Court in F.A. No.452/2014 (Sanwarlal Radhakishan Rajdev V/s. Bhagwandas Kalra) has dealt with the issue of

condonation of delay and in the judgment has observed as under :-

“7. Before adverting to rival contentions it is apposite to reiterate the law as regards scope, extent, limit and dimension of Section 5 of the

Limitation Act viz-a-viz “sufficient causeâ€​ and relevant considerations for condonation of delay.

In the case of Ramlal Vs. Rewa Coalfields Ltd. AIR 1962 SC 361, Hon. Supreme Court in para 7 has held as under:-

“7. In 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 the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding

between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of

limitation to treat 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 cannot be ignored is that if sufficient cause for excusing delay in shown discretion is given to the

court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in

that behalf should be exercised to advance substantial justice.â€​

Hon. Supreme Court in the case of P.K.Ramachandran Vs. State of Kerala, (1997) 7 SCC 556, has held in para 6 as under:-

“6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts

have no power to extend the period of limitation on equitable grounds.†10. As regards meaning, scope and rationale of the law of limitation, the

Hon'ble Apex Court in the case of Pundlilk Jalam Patil (Dead) by Lrs., Vs. Executive Engineer, Jalgaon MediumProject and another, (2008) 17 SCC

448 has held as under: “26. Basically the laws of Limitation are founded on public policy. In Halsbury’s Laws of England, 4th Ed.,

Vol.28,p.266,para 605, the policy of the Limitation Acts is laid down as follows:

“605. Policy of the Limitation Acts.- The courts have expressed at least three different reasons supporting the existence of statutes of limitation,

namely,(i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated

claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence.†27. Statutes of limitation are sometimes described

as ‘statutes of peace’. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for

public order. This court in Rajender Singh and others vs. Santa Singh and others [(1973) 2 SCC 705] has observed : (SCC p.712, para 18) “18. The

object of law of Limitation is to prevent disturbance and 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 lachesâ€​.

In Motichand vs. Munshi [AIR 1970 SC898], this court observed that this principle is based on the maxim “interest reipublicae ut sit finis litium,

that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private

justice suppressing fraud and perjury, quickening diligence and preventing oppression.

It needs no restatement at our hands thatthe object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for

the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond

in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.â€​

While dealing with the scope of jurisdiction under section 5 of the Limitation Act, as regards condonation of delay, the Hon'ble Apex Court in the

case of Lanka Venkateshwarlu (dead) by L.Rs., Vs. State of Andhra Pradesh and others, (2011) 4 SCC 363 has observed as under:

“19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in

this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause

under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition,

Anantnag & Ors. Vs. Katiji & Ors. (1987) 2 SCC 107.

The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this

Court in the case of Balwant Singh Vs. Jagdish Singh, (2010) 8 SCC 685, as follows:-

“25. We may state that even if the term “sufficient cause†has to receive liberal construction, it must squarely fall within the concept of

reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of

“reasonableness†as it is understood in its general connotation.†26. The law of limitation is a substantive law and has definite consequences on

the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of

a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing

sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is

directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be

achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a

valuable right that has accrued to it in law as a result of his acting vigilantly.â€​

We are at a loss to fathom any logic orrationale, which could have impelled the High Court to condone the delay after holding the same to be

unjustifiable. The concepts such as “liberal approachâ€​, “justice oriented approachâ€​, “substantial justiceâ€​ can not be employed to jettison

the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach

adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis

between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere 6 intemperate language, the High Court

resorted to blatant sarcasms.

The use of unduly strong intemperate orextravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases.

Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled

discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The

discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form

the basis of exercising discretionary powers.â€​

Hon. Supreme Court in a recent decision Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai, (2012) 5 SCC 157 has held in para

24 as under:-

“24. What colour the expression “sufficient cause†would get in the factual matrix of a given case would largely depend on bona fide nature of

the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona

fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent

in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.â€​

In the application u/s. 5 of the limitation Act, the appellant has pleaded that earlier Ms. Madhu Bhatia, Advocate who was dealing with the matter,

has died and the appellant being aged about 86 years was not capable to move frequently. Afterwards, the present counsel was engaged, but complete

record was not handed over to him. The aforesaid pleadings are very vague in nature. No date of death of the counsel has been mentioned, delay of 5

years and 210 days has not been properly explained.

In the light of the law laid down by the apex Court and as discussed above, no case of condonation of delay or setting aside of abatement is made

out. Accordingly, the applications under Order 22 Rule 9 of the C.P.C. and u/s. 5 of the Limitation Act stand rejected. Consequently, the appeal

stands dismissed as abated.