Neelam Rana vs Ashok Chopra

Virender Singh, J

The applicant has filed the accompanying Regular  Second  Appeal,  before  this  Court,  against  the judgment and decree dated 2.9.2022, passed by the Court of learned Additional District Judge­II, Solan (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No.2ADJ­II­13/2020, titled as Neelam Rana versus Ashok Chopra.

By way of the judgment and decree dated 2.9.2022, the learned First Appellate Court had dismissed the appeal of the appellant, preferred against the judgment and decree dated 27.11.2019, passed by the Court of learned Senior Civil Judge, Kasauli, District Solan, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit No.9/1 of 2012/2007, titled as Ashok Chopra versus Neelam Rana.

Vide judgment and decree dated 27.11.2019, the suit of plaintiff–Ashok Chopra, was decreed, by the learned trial Court, by granting the following relief:­

“34. In view of my findings on the above decided issues supra, the suit of the plaintiff is decreed and the defendant is directed to execute the sale deeds in favour of the plaintiff in respect of property bearing khasra Nos.187/137/12 and khasra No.192,188/ 137/12. Further in view of the aforesaid the plaintiff is also entitled to the relief of permanent prohibitory injunction against the defendant restraining her from interfering in any manner in the peaceful possession, use and occupation of the suit land as aforesaid, since he has already proved on record to be possession of the same. Decree sheet be prepared accordingly. File, after due completion, be consigned to the record room.”

Since, the present appeal has been filed, after the prescribed period of limitation, as such, the present application, under Section 5 of the Limitation Act, has been moved for condonation of the delay, which, as per report of the Registry, is 48 days.

The delay, in filing the present appeal, has been sought to be condoned, on the ground that the learned First Appellate Court had decided the appeal, vide judgment and decree dated 2.9.2022, and the certified copy of the judgment was applied on 3.9.2022. The certified copy of the judgment and decree was attested on 12. 10.2022 and was delivered to the learned counsel representing the appellant­applicant on 13.10.2022. Thereafter, intimation was given to the applicant for discussing the matter with regard to filing of the appeal.

It is the further case of the applicant that her General Power of Attorney had imparted necessary instructions to the learned counsel to prepare and file the appeal, but, while computing the period of limitation, due to sheer oversightness, the learned counsel mis­calculated the period of limitation in filing the appeal. She has further explained this oversightness, in calculating the period of limitation, by pleading that the learned counsel remained under the bona fide belief that limitation would expire after closure of the Courts in winter break i.e. 90 days after deductions, would be over after starting of winter vacation. As such, according to the applicant, the appeal could be filed, during vacation or on the first day of the reopening of the Court. The appeal was drafted on 16.1.2023, but, could not be filed during vacation. It has been decided that the appeal would be filed on the first day of the re­opening of the Court and if filed on the first day of re­opening of the Court, after winter vacation, the appeal would be within limitation.

It is the further case of the applicant that the appeal was filed on 27.2.2023, i.e. on the first day of the reopening of the Court, however, the Registry raised the objection that the appeal was barred by time and it was found that the limitation had expired on 10.01.2023 and the appeal was required to be filed on or before 10. 01.2023.

It has also been pointed out that this Court was closed, on account of winter vacation, from 13.01.2023.

It is the further case of the applicant that she was advised to come to Shimla for filing the present appeal, but, neither applicant, nor her GPA could undertake the journey being unwell, on account of advance­age problems and came to Shimla on 26.04.2023 and thereafter, the present application was filed.

All these facts have been highlighted to show that the delay was neither intentional nor deliberate or willful, rather, the same was bona fide, due to the reasons, as mentioned, in the application. The application is duly supported by the affidavit of the General Power of Attorney of the applicant.

On the basis of the above facts, a prayer has been made to allow the application and to condone the delay.

When put to notice, the present application has been contested by the non­applicant, by filing the reply, in which, the preliminary objections, have been taken that the applicant has suppressed the material facts from scrutiny of the Court.

Elaborating his stand, it has been pleaded by the non­applicant that the order dated 05.10.2021, passed by the Executing Court, has also been suppressed. The copy of the said order has been annexed with the reply, as Annexure R­1, as per which, the applicant was directed to appear before the Sub­Registrar, Kasauli, on 08.10.2021, to execute the sale deed in favour of the non­applicant. Thereafter, on 27.10.2021, the applicant produced the copy of stay order, passed by the learned First Appellate Court and the execution proceedings were ordered to be kept in abeyance. However, with the dismissal of the appeal, preferred before the learned First Appellate Court, the said execution petition had revived. Subsequently, the non­applicant immediately took steps to execute the decree. Thereafter, according to the non­applicant, number of orders were passed by the Executing Court. The gist of the orders has been reproduced, in the reply.

It is the further case of the non­applicant that on 12.10.2022, when, the application was moved, before the Executing Court, for execution of the sale deed, then, the matter was adjourned to 02.11.2022. On 29.12.2022, the Executing Court had directed the applicant to be present before the Sub­Registrar for execution of the sale deed and the matter was adjourned for 20.01.2023. On 20.01.2023, an application, under Order XVII Rule 1 CPC, was filed, stating, on oath, that 90 days’ more time be given to her to produce the stay orders from this Court, however, the said application was ordered to be dismissed by the Executing Court and the matter was adjourned for 20.2.2023. On 20.2.2023, the Executing Court passed the order by directing Harish Kumar, Senior Assistant of the Executing Court, to appear before the Sub­Registrar, Kasauli to facilitate the transfer of the suit land in favour of the non­applicant, by execution of sale deed. The orders dated 20.02.2023 and 13.3.2023 have also been annexed with the application.

All these facts have been pleaded to show that the applicant was not only aware about the fact that the decree was being executed, but, she was also aware of the fact that no appeal had been filed, in this Court, against the judgment and decree, passed by the learned First Appellate Court. Hence, a stand has been taken that now, she could not be permitted to feign ignorance, as, she was aware about the fact from 12.10.2022, and despite that, she has not made any effort to file the appeal nor any attempt has been made to obtain stay order from this Court during winter vacation.

On the basis of above facts, it has been pleaded that the applicant was not only negligent, but, has taken the callous attitude in pursuing the matter. The delay, in filing the appeal is stated to be not bona fide, but, according to him, appears to be intentional.

On the basis of the above facts, a prayer has been made to dismiss the application.

From the pleadings of the parties, the following issues were framed, by this Court, vide order dated 21. 05.2024:­

“1. Whether there are sufficient cause to condone the delay in filing the appeal? OPA

Whether the applicant has suppressed material facts from this Court, if so, its effect?

OPR

Relief.”

Thereafter, the parties to the lis were directed to adduce evidence.

The applicant could not adduce any evidence nor take any steps, as such, her right to adduce evidence has been closed by order of the Court dated 16.09.2024.

I have heard learned counsel for the parties and have also gone through the record of the case carefully.

Issue No.1 & 2

Both these issues, being interlinked and interconnected, can conveniently be disposed of, by common findings, in order to avoid repetition of pleadings and proof.

In this case, the applicant is seeking indulgence of this Court to condone the delay of 48 days, as occurred, in filing the main appeal.

It is no longer res integra that the length of delay does not matter, it is the explanation, which is liable to be considered for condoning the delay.

It is also not in dispute that while deciding the application, under Section 5 of the Limitation Act, the Court is required to take liberal approach. But, would this mean, whatsoever, explanation, has been given, in the application, is liable to be accepted? The answer to the question is in negative.

The applicant has given factual position with regard to non­filing of the application within the prescribed period of limitation, but when issues were framed, neither she herself appeared in the witness­box nor examined any witness to prove or probabilize her stand, as taken, in the application. If such type of explanation is accepted, without any iota of evidence, then, there would be no end to the litigation, as every litigant would approach to the Court with such type of explanation, seeking condonation of delay.

The non­appearance of the applicant is a fact, from which, an adverse inference can be drawn that the case, set up by the applicant, is not correct.

The another ground to draw this conclusion is that the non­applicant, in this case, has taken a specific stand with regard to the fact that the execution petition, filed by him, seeking execution of judgment and decree, passed by the learned trial Court, was pending adjudication. However, due to the stay, granted by the  learned First Appellate Court, the same was kept in abeyance. With the dismissal of the appeal, by the learned First Appellate Court, the same has been revived.

Not only this, as per the order dated 5.10.2021, passed by the Executing Court, the applicant, being JD, put appearance, before the executing Court, through Shri Atul Pandit, Advocate. Operative portion of the order dated 5.10.2021, passed by the learned Executing Court, is reproduced as under:­

“ Keeping in view the contentions of the ld. Counsel for the DH, I deem it appropriate that let the sale deed be executed and the JD is directed to appear before the office Sub Registrar in order to execute the sale deed on 08.10.2021 and further report be returnable to this court for 27.10.2021. Meanwhile, the ld. Advocate for the JD is free to take a copy of the draft sale deed and satisfy himself with respect to the clauses so mentioned therein and apprise the JD also regarding the same but the process for execution of sale deed should not suffer or be delayed on account of any further on the part of the JD on this score.”

Non­applicant has also placed on record the copies of the orders dated 29.12.2022 and 20.1.2023. On 20.1.2023, applicant Neelam Rana had moved an application, under Order XVII Rule 1 CPC, in which, she has sought 90 days’ more time for producing the stay order from this Court. However, her application was dismissed by the learned Executing Court.

The appeal, before this Court, has been filed on 27. 02.2023 and the present application has been filed on 01.05.2023.

A man may lie, but, a document will never lie. When, the appeal, which was filed on 27.02.2023, was found to be barred by limitation by 48 days, then, in the ordinary course of events, the application for delay should have been filed immediately thereafter. But, for the reasons, best known to the applicant, she had filed the application only on 1st May, 2023, whereas, the affidavit of General Power of Attorney, holder was attested on 27.04.2023.

All these facts have rightly been highlighted by the learned counsel for the non­applicant to demonstrate that there was negligence, as well as, inaction, on the part of the applicant.

If the facts and circumstances of the present case are seen, in the light of the decision of the Hon’ble Supreme Court in Union of India & Another versus Jahangir  Byramji  Jeejeebhoy  (D)  through  his  LRs, 2024 SCC OnLine SC 489, then, the application is liable to be dismissed. Relevant paragraphs 26 to 28 and 33 to 35, of the judgment, are reproduced, as under:­

The length of the delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the appellants, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non­deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. We should not keep the ‘Sword of Damocles’ hanging over the head of the respondent for indefinite period of time to be determined at the whims and fancies of the appellants.

At this stage, we would like to quote few observations made by the High Court in its impugned order pointing towards lack of bona fides on the part of the appellants. The observations are as under:­

“9. A perusal of paragraph 4 extracted hereinabove shows that on oath, solemn statement is made that notice of Darkhast No.16 of 2014 for execution of the decree issued by the executing Court was received by the Department on 25.02.2019. As against this, in paragraph 3 of the additional affidavit dated 04.07.2019 made by Rajendra Rajaram Pawar, it is stated that the averments made in paragraph 4 as regards service of Darkhast on 25.02.2019 is factually incorrect. Notice of Darkhast No. 16 of 2014 was received by the defendants on 18.03.2016. The error in the application is out of inadvertence for which he tendered unconditional apology. It is further stated that inadvertent mistake on facts as to knowledge of execution proceedings was purely because of oversight in the light of possibilities of issuance of possession warrant by the executing court and requirement of expeditious urgency of moving before this Court to save the proceeding in litigation since 1981 which otherwise would have got frustrated. He stated that the same is nothing beyond human error.

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The assertions made in paragraph 4 are bereft of any particulars and are totally vague. In fact the solemn statement made in paragraph 4 that notice of Darkhast for execution of the decree issued by the executing Court was received by the Department on 25.02.2019, to put it mildly, is incorrect statement. In view of paragraph 3 of the additional affidavit dated 04.07.2019 made by Rajendra Rajaram Pawar, it is evident that notice of Darkhast was received by the defendants on 18.03.2016. It is material to note that no particulars are given as to when the Department sought legal opinion. There is also no explanation as to why Department did not instruct lawyer in the High Court to apply for restoration of the Petition and why the Department defended execution proceedings. It is worthwhile to note that execution proceedings were filed by the respondents only because Writ Petition was dismissed. If the Writ Petition was restored, automatically the execution proceedings would have been stayed by the executing Court. Instead of adopting appropriate proceedings, the defendants unnecessarily went on defending the execution proceedings. In paragraph 4(b) though it is stated that Department was regularly following up with its panel lawyer till 2003, this statement is also not substantiated by producing any document. Even if I accept that the Department was regularly following up with its panel lawyer till 2003, there is no explanation worth the name as to why the Department did not follow up the matter between 2003 and 2006 when the Petition was dismissed in default. That apart, equally, there is no explanation as to why no follow up action was taken by the officers between 2006 and 2016 when Department acquired knowledge about dismissal of Writ Petition on 18.03.2016.

It is no doubt true that while considering the application for condonation of delay, the expression ‘sufficient cause’ has to be liberally construed. It, however, does not mean that without making any sufficient cause, the Court will condone the delay regardless of the length of the delay. In the present case, the delay is of 12 years and 158 days. A perusal of the application as also the additional affidavit hardly indicates any sufficient cause for condoning the unpardonable delay of 12 years and 158 days.”

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In the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Others, (2013) 12 SCC 649, this Court made the following observations:

“21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice­oriented, non­ pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact­situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non­serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.”

In view of the aforesaid, we have reached to the conclusion that the High Court committed no error much less any error of law in passing the impugned order. Even otherwise, the High Court was exercising its supervisory jurisdiction under Article 227 of the Constitution of India.

In a plethora of decisions of this Court, it has been said that delay should not be excused as a matter of generosity. Rendering substantial justice is not to cause prejudice to the opposite party. The appellants have failed to prove that they were reasonably diligent in prosecuting the matter and this vital test for condoning the delay is not satisfied in this case.”

Judging the facts and circumstances of the present case, as discussed above, in the light of the decision   of   the   Hon’ble   Supreme   Court   in  Jahangir Byramji Jeejeebhoy’s case supra, this Court is of the view that the applicant has miserably failed to prove her case, warranting the indulgence of this Court to condone the delay.  Consequently, issues No.1 & 2 are decided against the applicant.

RELIEF

In view of my findings on issues No.1 & 2, above, there is no sufficient cause to condone the delay in filing the main appeal. As such, the application, under Section 5 of the Limitation Act, is dismissed.