Pramila Sharma and Ors. vs District Judge,Kanpur Nagar & Ors.

S.P. Mehrotra, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioners, inter alia, praying for quashing the judgment and order dated 2732002 (Annexure 3 to the writ petition) passed by the learned Judge, Small Cause Court, Kanpur Nagar, the order dated 2972003 (Annexure 11 to the writ petition) passed by the Execution Court, and the order dated 392003 (Annexure 13 to the writ petition) passed by the learned District Judge, Kanpur Nagar (respondent No. 1).

The dispute relates to an accommodation on the first floor of house No. 106/185 Gandhi Nagar, Kanpur Nagar, the details whereof are given in the plaint of SCC Suit No. 10 of 1993, referred to hereinafter. The said accommodation has hereinafter been referred to as �the disputed accommodation�.

It may be mentioned at the outset that in the present writ petition, a supplementary affidavit has been filed on behalf of the petitioners, which has been taken on record by the order dated 2292003.

From the averments made in the writ petition and the said supplementary affidavit, it appears that the respondent Nos. 3 to 5 filed a suit for eviction, arrears of rent etc. in respect of the disputed accommodation against Prem Prakash Sharma (predecessorininterest of the petitioners) and Surendra Prakash Sharma (respondent No. 6) and Suraj Prakash Sharma (respondent No. 7). The said suit was registered as SCC Suit No. 10 of 1993. Copy of the plaint of the said Suit has been filed as Annexure 1 to the writ petition.

In the said suit, written statement was filed on behalf of the said Prem Prakash Sharma, predecessorininterest of the petitioners. Copy of the said written statement has been filed as Annexure 2 to the writ petition.

It further appears that during the pendency of the said suit, the said Prem Prakash Sharma, predecessorininterest of the petitioners, died, and the petitioners were brought on record as the heirs and legal representatives of the said Prem Prakash Sharma.

It further appears that by the judgment and order dated 273 2002 (Annexure 3 to the writ petition), the said SCC Suit No. 10 of 1993 was decreed.

Thereafter, it appears the petitioners filed a Revision under Section 25 of the Provincial Small Cause Courts Act. The said Revision was registered as SCC Revision No. 51 of 2002. Copy of the Memorandum of the said Revision has been filed as Annexure 4 to the writ petition.

It further appears that by the order dated 1822003, the said SCC Revision No. 51 of 2002 was dismissed in default.

It further appears that a restoration application supported by an affidavit sworn on 2572003 was filed on behalf of the petitioners, inter alia, praying for setting aside the said order dated 1822003 and restoring the said SCC Revision No. 51 of 2002 to its original number. Copy of the said restoration application has been filed as Annexure 5 to the writ petition, and copy of its supporting affidavit sworn on 2572003 has been filed as Annexure 6 to the writ petition.

It further appears that the said restoration application was accompanied by an application under Section 5 of the Limitation Act. An affidavit sworn on 2572003 was also filed in support of the said application under Section 5 of the Limitation Act. Copy of the said application under Section 5 of the Limitation Act has been filed as Annexure 7 to the writ petition, while copy of its supporting affidavit sworn on 2572003 has been filed as Annexure 8 to the writ petition.

It further appears that an application dated 282003, inter alia, praying for staying the eviction of the petitioners was also filed on behalf of the petitioners alongwith an affidavit sworn on 282003. Copies of the said stay application and its supporting affidavit sworn on 282003 have been filed and collectively numbered as Annexure 9 to the writ petition.

It further appears that by the order dated 282003, the learned District Judge, Kanpur Nagar held that until the disposal of the application for condonation of delay under Section 5 of the Limitation Act, it would not be proper to grant any stay order. Copy of the said order dated 282003 has been filed as Annexure 10 to the writ petition.

It further appears that against the said order dated 282003, the petitioners filed a writ petition before this Court, being Civil Misc. Writ Petition No. 36063 of 2003. By the order dated 2182003 (Annexure 12 to the writ petition), the said Civil Misc. Writ Petition No. 36063 of 2003 was disposed of with the following directions:

� ..........Accordingly, it is directed that learned District Judge must decide the application for condonation of delay as expeditiously as possible. The respondents are represented through learned Counsel Sri H.N. Singh. Both the parties are directed to appear before the District Judge, Kanpur Nagar on 28th August, 2003 alongwith certified copy of this order on which date the learned District Judge must fix a very short date for disposal of application under Section 5 of the Limitation Act.

With the above observation writ petition is disposed of. Certified copy of this order may be provided within two days.�

Thereafter, by the order dated 392003, the learned District Judge, Kanpur Nagar (respondent No. 1) dismissed the application for condonation of delay filed on behalf of the petitioners under Section 5 of the Limitation Act, and in consequence the restoration application was also dismissed as being barred by limitation.

Thereafter, the petitioners have filed the present writ petition seeking the reliefs mentioned above.

I have heard Shri K.K. Tripathi, learned Counsel for the petitioners and Shri H.N. Singh, learned Counsel for the caveator respondent Nos. 3, 4 and 5 and perused the record.

Shri Tripathi, learned Counsel for the petitioners submits that it is well settled that the Courts should adopt liberal view in the matter of condonation of delay. It is submitted that the learned District Judge, Kanpur Nagar in passing the impugned order dated 392003 failed to appreciate the said settled position.

Reliance is placed in this regard by Shri Tripathi, learned Counsel for the petitioners on a decision of the Supreme Court in Collector Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353.

It is further submitted by Shri Tripathi, learned Counsel for the petitioners that the past conduct of the petitioners was not relevant for deciding the application for condonation of delay. The learned District Judge, Kanpur Nagar acted illegally in taking into account the past conduct of the petitioners while deciding the application for condonation of delay filed on behalf of the petitioners.

Reliance in this regard is placed by Shri Tripathi, learned Counsel for the petitioners on a decision of this Court in Ram Raj and others v. Deputy Director of Consolidation and others, 1988 RD 139 (LB).

In reply, Shri H.N. Singh, learned Counsel for the caveator/respondent Nos. 3 to 5 submits that the question of adopting liberal approach in the matter of condonation of delay would arise only when the cause shown by the petitioners was found to be true. In case, the submission proceeds, the cause shown on behalf of the petitioners for delay was not believed, there was no question of adopting liberal approach in the matter of condonation of delay.

It is further submitted by Shri Singh that the application for condonation of delay filed on behalf of the petitioners was not dismissed merely on the ground of past conduct of the petitioners. The past conduct of the petitioners was taken into consideration by the learned District Judge, Kanpur Nagar in order to decide as to whether the cause shown by the petitioners in their application for condonation of delay could be believed or not.

I have considered the submissions made by the learned Counsel for the parties.

In order to appreciate the first submission made by Shri Tripathi, learned Counsel for the petitioners, it is pertinent to refer to the provisions of Section 5 of the Limitation Act, 1963:

�5. Extension of prescribed period in certain cases. Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.�

Section 5 of the Limitation Act, 1963, inter alia provides that an appeal or an application may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. It will thus, be seen that two things are required to be shown by the appellant or the applicant with reference to Section 5 of the Limitation Act, 1963:

(1) The appellant or the applicant had cause for not preferring the appeal or making the application within the prescribed period. In other words, the appellant or the applicant must show that there was cause for not preferring the appeal or making the application within the prescribed period.

(2) The said cause shown by the appellant or the applicant was sufficient cause. In other words, the appellant or the applicant should establish that the cause shown by him was sufficient cause.

It is wellsettled that the Court should adopt liberal view on the question of �sufficient cause� and should lean in favour of giving hearing to both the sides. However, the said principle regarding liberal approach on the question of �sufficient cause� applies when the aforesaid requirement No. 2 is being considered.

If the cause shown by the appellant or the applicant (i.e., requirement No. 1 above) is found to be true, then only the question would arise as to whether the said cause is sufficient or not (i.e., requirement No. 2 above). It is at this stage that the above principle regarding liberal approach on the question of �sufficient cause� applies. In other words, once the cause shown by the appellant or the applicant is found to be true, the Court should be liberal in deciding as to whether such cause is sufficient or not.

On the other hand, if the cause shown by the appellant or the applicant is itself found to be false (i.e. requirement No. 1 above) then the question of considering as to whether such cause is sufficient or not (i.e., requirement No. 2 above) does not arise. Hence, in such a case, no occasion arises for applying the above principle regarding liberal approach on the question of �sufficient cause�.

In short, the applicability of the above principle regarding liberal approach on the question of �sufficient cause� presupposes that the cause shown by the appellant or the applicant has been found to be true, and the question to be considered is, as to whether such cause is sufficient or not. In case, the cause shown by the appellant or the applicant is itself found to be untrue, no question of adopting liberal approach in deciding such cause to be sufficient or not, arises.

In the present case, the learned District Judge, Kanpur Nagar on a consideration of the facts and circumstances of the case and the material on record, did not believe the cause shown by the petitioners for condonation of delay in filing the restoration application to be true. As the cause shown by the petitioners for condonation of delay was not found to be true by the learned District Judge, Kanpur Nagar in the impugned order dated 392003 there was no occasion for considering as to whether such cause was sufficient or not (i.e. requirement No. 2 above). Consequently, there was no occasion for applying the above principle regarding liberal approach on the question of �sufficient cause� in the present case.

The first submission made by Shri Tripathi, learned Counsel for the petitioners, therefore, in my opinion, cannot be accepted.

In Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (supra) their Lordships of the Supreme Court laid down as follows (paragraph 3 of the said AIR):

�(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:

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

(2) 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.

(3) �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.

(4) 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 justice being done because of a nondeliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he rules a serious risk.

(6) 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.

Making a justice oriented approach from this perspective there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ''State'' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the ''State'' is the applicant praying for condonation of delay. In fact experience show that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, file pushing and passing one the buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community does not deserve a litigant non grata status. The Courts, therefore, have to informed with the spirit and philosophy of the provision in the course of the interpretation of the expression �sufficient cause�. So also the same approach has to be evidenced in its application to matters at hand with end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned, and the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.�

The said decision of the Supreme Court thus lays down that liberal approach should be adopted in determining the question of �sufficient cause� under Section 5 of the Limitation Act, 1963.

However, the said decision in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (supra) is not applicable to the facts of the present case. As noted above, the occasion for adopting liberal approch in deciding the question of �sufficient cause� arises only when the appellant or the applicant is able to establish �cause� for not preferring the appeal or making the application within the prescribed period. In the present case, the cause shown by the petitioners was not believed by the learned District Judge, Kanpur Nagar on a consideration of the facts and circumstances of the case and the material on record. Evidently, the question of considering as to whether the said cause was sufficient or not, and for adopting liberal approach in determining the said question, did not arise in the present case.

Coming now to the second submission made by Shri Tripathi, learned Counsel for the petitioners, a perusal of the impugned order dated 392003 shows that the past conduct of the petitioners was considered as a chain of events in order to decide as to whether the cause shown by the petitioners for condonation of delay could be believed or not. The past conduct of the petitioners has not been made the basis for rejecting the application for condonation of delay filed on behalf of the petitioners. In the circumstances, the second submission made by Shri Tripathi, learned Counsel for the petitioners cannot be accepted.

In Ram Raj case (supra) relied upon by the learned Counsel for the petitioners, it was laid down as follows (at page 140 of the said RD):

� .........In my opinion, the past conduct of the petitioners and previous negligence or want of diligence on their part to prosecute their case could not be made the basis for rejecting the application for restoration moved by the petitioners wherein sufficient cause was shown for nonappearance of petitioner No. 22, Ram Jiyawan, who had reached Court late due to his sudden, illness while coming to Court........�

(Emphasis supplied)

The said decision in Ram Raj case (supra) in my opinion, is not applicable to the facts and circumstances of the present case. As noted above, in the present case, the learned District Judge, Kanpur Nagar had taken into consideration the past conduct of the petitioners as a chain of events in order to decide as to whether the cause shown by the petitioners for condonation of delay in filing the restoration application could be believed or not. The said past conduct of the petitioners does not constitute the basis for rejecting the application for condonation of delay filed on behalf of the petitioners.

In view of the aforesaid discussion, I am of the opinion that the writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.