Kashmiri Lal Thakral and Others vs Mohd. Aslam and Others

Rajesh Tandon, J.—Heard Sri Manoj Mishra learned Counsel for the Petitioner and Standing Counsel for the respondents.

By the impugned order, the application u/s 5 of the Limitation Act while filing restoration application has been rejected in filing the Revision within time.

Briefly stated, the Suit was filed by the plaintiff/respondent No. 1 praying for the eviction of the defendant/applicant from the premises situate at Nainital Road, Kichha, Nainital.

The plaintiff filed a Suit No. 16 of 1992, for arrears of rent, damages and eviction from a shop situated at Bareilly-Nainital Road, Kichha, Nainital. The Suit was contested by the applicants. The suit was decreed on 10.8.1999. A revision was preferred by the applicants, which was registered as Revision No. 11/1999. The said revision was dismissed in default on 17.2.2000. The petitioners have filed the application for recalling of the orders passed exparte on the ground that on 7.2.2000, he went to Ludhiyana in a marriage and thereafter, he was not aware about the date as the Counsel has not informed him. Further it has been stated that there was a strike from the last week of February, 2000 till the mid of April, 2000. The information, therefore, could not be made available to the petitioners till 6.4.2000.

Counsel for the petitioners has submitted that while deciding the application u/s 5 of the Limitation Act, there should be a liberal approach.

The Apex Court in the case N. Balakrishnan v. M. Krishnamurthy Supreme Court and Full Bench Rent Cases 1998 Page 427 held as under:

"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.

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 guidelines 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 Apex Court in the case of Ram Nath Sao @ Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors. 2002 SCFBRC 440 has held as under:-

"The expression ''sufficient'' cause'' within the meaning of Section 5 of the Limitation Act, 1963 (hereinafter referred to as the ''Act''), Order XXII, Rule 9 of the CPC (hereinafter referred to as ''the Code'') as well as similar other provisions and the ambit of exercise of powers thereunder have been subject matter of consideration before this Court or numerous occasion. In the case of The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, , while considering scope of the expression ''sufficient cause'' within the meaning of Section 5 of the Act, this Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party."

The need of society is that there should be justice oriented approach and the appeal should not be rejected only on the ground of technicalities. The Apex Court has held in M.S. Grewal and Another Vs. Deep Chand Sood and Others, as under:

"Law Courts will lose their efficicacy if they cannot possibly respond to the need of the society-technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice."

In view of the aforesaid fact, the Writ Petition is allowed. The revision is restored to its original number the same shall be decided on merits after hearing both the parties.

However, this restoration application is subject to the payment of the entire decreetal amount, due towards the petitioner in pursuance to the decree passed by the Judge Small Cause Court.

However, the payment shall be made by the petitioner by 15th November, 2004. The Revision itself shall be decided within a period of three months from the filing of the certified copy of the order.