Kalu Ram vs Surendra Kumar and Others

Pratap Krishna Lohra, J.—The appellant-defendant No. 1 has laid this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, ''CPC'') challenging the impugned judgment and preliminary decree dated 17th October 2012 passed by learned Additional District Judge (Fast Track) No. 3, Jodhpur Metropolitan in a suit for partition and permanent injunction. By the impugned judgment and preliminary decree, learned trial Court has declared respondent No1.-plaintiff entitled for one-third share in the suit property. A decree for permanent injunction is also passed against the defendants not to transfer, alienate or alter the share of the plaintiff in the property.

The appeal is filed after delay of 791 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 applicant has filed a civil first appeal before this Hon''ble Court on 26.03.2015 against the Preliminary Decree dated 17.10.2012 passed by ADJ No. 3, Jodhpur in Civil Original Suit No. 140/08 (98/07) Surendra Kumar V/s. Kalu Ram and Ors.

That the applicant and non-applicants are real brothers and residing in separate portions of the disputed property since the lifetime of their father having separate residence and mess.

That after the preliminary decree passed by the trial court, the applicant and non-applicants who are real brothers get together and decided that court has declared that parties are having 1/3 share each in the disputed property so they are satisfied and the non-applicant No. 1 Surendra Kumar will not press for passing of final decree.

That after more than two years passed, the non-applicant No. 1 applied for passing of final decree and a notice to that effect has been received by the applicant on 09.03.2015.

That the applicant should have filed the first appeal against the preliminary decree passed by Lower Court on 17.10.2012 within 90 days time. But due to meeting of the parties as stated in para 3 of this application, the applicant could have filed the first appeal in High Court on 15.01.2013 with in 90 days. But the applicant was kept in dark and filed the first appeal by a delay of 797 days.

That due to unavoidable circumstances the appeal filed by the applicant in this court is delayed by 797 days which in beyond his control, as the parties agreed, not to press for final decree proceedings. Now all off sudden after more than two years the non-applicant pressed for passing of the final decree.

That the applicant relied on the assurance of his brothers and have been prevented from filing appeal. It is a reasonable and sufficient ground for condonation of delay.

It is therefore prayed that the delay in filing first appeal by delay of 797 days may kindly be condoned and the appeal filed by the applicant may kindly be treated in time.

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

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 791 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.

Therefore, viewed from any angle, I am not inclined to accede to the prayer of the appellant for condonation of delay and accordingly the application under Section 5 of the Limitation Act is rejected. The rejection of the application under Section 5 of the Limitation Act entails rejection of this appeal also and same is, therefore, dismissed.