Kariyamma and Others vs Sanjeevaiah and Others

Aravind Kumar, J.

Order ON I.A. 1/2012

Heard learned counsel appearing for the appellants. Perused the affidavit supporting the application for condonation of delay.

There is a delay of 775 days in filing the appeal. In the affidavit supporting the application cause shown in paragraph 4 is to the effect that appellants were not aware about the Judgment and decree passed by first appellate court and they have also contended that first appellant is suffering from various ailments for the last 1 � years and they were under the impression that on pronouncement of Judgment by 1st appellate court it will be intimated to them by their counsel and on account of non receipt of such communication they had visited office of the counsel during second week of March 2012 and only on such enquiry they came to know about copy of Judgment having been despatched by post to them had been returned unserved and it is thereafter counsel handed over the copy of Judgment and as such delay had occurred and sought for condoning the delay. When the matter was listed on 29.10.2014 at request of counsel for appellants a week''s time was granted to file better affidavit explaining the cause for delay.

Thereafter an affidavit classifying it as better affidavit came to be filed on 19.11.2014 whereunder first appellant has stated that she was looking after the matter before first appellate court on her behalf and also on behalf of other appellants and has reiterated what was stated by her in the earlier affidavit without any better information being disclosed. Respondents have filed detailed statement of objections and have contended that there is no justifiable cause shown by the appellants and as such delay ought not to be condoned. Hence, they have prayed for dismissal of the application and consequently the appeal.

Having heard the learned advocates appearing for the parties this court is of the considered view that following point would arise for consideration:

"Whether the cause shown by the appellants for filing the appeal belatedly is to be accepted as sufficient cause or not?"

This court is reminded of the Judgment of Hon''ble Apex Court rendered in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, whereunder the Hon''ble Apex Court has held that while considering an application for condonation of delay it is not the length of delay but cause shown for such delay which would be the primary consideration. It has also been held that courts inherent power to condone the delay should be exercised while administering substantial justice and when technicalities are pitted against substantial justice such technicalities will have to necessarily yield to technicalities. Hon''ble Apex Court by way of illustration had laid down the contours for considering an application for condonation of delay and it reads as under:

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:--

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so".

Though the points delineated by Apex Court are illustrative not exhaustive this court cannot loose sight of the fact that in order to do substantial justice the technicalities if any will have to be given a go by. At the same time rights which would have flown to the opposite party on account of such lapses which was not diligently prosecuted by parties to the lis namely party who is seeking condonation of delay, also cannot be ignored by this court. Unintentional delay for bonafide reasons like ill-health, bereavement in the family or illiteracy of the litigant are some of the factors which the courts will take into consideration. The Hon''ble Apex Court yet again in the case of Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, has held that when the cause shown is not susceptible to acceptance or not being in the proximity of truth the delay should not be condoned. Hence, keeping the principles laid down by Hon''ble Apex Court in the above referred Judgments when facts on hand are examined it would indicate that Judgment came to be rendered by first appellate court in R.A.253/2008 on 20.11.2009, certified copy was applied on 12.11.2010 and it was delivered on 26.11.2010. Appeal came to be filed on 03.04.2012. Thus, delay has occurred at every stage. As per the note made by the registry there is a delay of 775 days in filing the appeal.

On account of appellants having contended that first appellant was incharge of the case and she was suffering from ailments, this court extended an olive branch to the appellants to file a better affidavit supporting such claim. Though better affidavit came to be filed on 19.11.2014 it is bereft of any material particulars namely it does not indicate the alleged ailments which the first appellant was suffering. Even otherwise if same is to be accepted as gospel truth, this court cannot loose sight of the fact that appellants 2 to 6 are all majors and no explanation is forthcoming as to why her sons namely appellants 4, 5 and 6 could not take effective steps to file this appeal. But on the other hand the first appellant has made a valiant effort to put the blame on the learned advocate who appeared on her behalf before lower Appellate court and conducted the case and also intimated her by forwarding the certified copy of Judgment to her to the postal address as furnished to him and has attempted to shift the blame on the learned advocate. This cannot be countenanced, inasmuch as for their lapses (of appellants) they have tried to blame the learned Advocate who conducted the case before the first appellant court. A counsel representing the party is not expected to intimate his clients personally the outcome of day to day proceedings. It is the duty of the client to be in touch with the learned Advocate and ascertain as to the status of their case. For their fault or lapses they cannot blame the learned Advocate who appeared on their behalf as has been done in the instant case.

In that view of the matter I do not find that there is any justifiable cause or sufficient cause shown by the appellants to condone the delay of 775 days and cause shown in the affidavit filed in support of the application would not indicate that it is sufficient cause or susceptible to acceptance. Hence, this court is of the considered view that delay of 775 days cannot be condoned. Accordingly I.A. 1/2012 is liable to be rejected and stands rejected. Consequently appeal stands dismissed.