Rajinder Kumar @ Rajinder Parshad and Another vs Swami Nihal Dass and Others

Vinod K. Sharma, J.

CM No.16307-CII of 2007

Mr. R.M. Suri, Advocate, for non-applicant-Respondent No. 3. VINOD K. SHARMA, J.(ORAL) CM No. 16307-CII of 2007 This application, u/s 5 of the Limitation Act, has been moved for condoning the delay of 5 years 11 months i.e. 2160 days in filing the application for setting aside the ex parte order, dated 30.7.2001, vide which FAO No. 874 of 2000 was dismissed in default.

The appeal filed by the applicant-Appellants, had come up for hearing on 7.2.2001, but was adjourned to enable the Appellants to bring on record the legal representatives of Respondent No. 1.

When the appeal was listed for hearing on 30.7.2001, neither the counsel appeared to represent the Appellants, nor any application was moved for bringing on record the legal representatives of the deceased Respondent No. 1, consequently, the appeal was ordered to be dismissed in default.

Thereafter, the application for restoration of the appeal dismissed in default, was moved on 30.7.2007 along with an application for condonation of delay. It has been averred in the application, that Sh.

Umesh Wadwa, Advocate, was representing the applicant-Appellants and he, in fact, prepared the application for bringing on record the legal representatives of the deceased-Respondent.

However, the application was not moved, and it was only in the year 2007, when the applicants visited Chandigarh, that they came to know about the dismissal of the appeal in default. It is the case of the applicants, that they had no knowledge about the dismissal of the appeal, therefore, the delay deserves to be condoned, as "sufficient cause" u/s 5 of the Limitation Act, is to be given liberal interpretation.

In support of the contention, the learned Counsel for the applicant-Appellants has placed reliance on the judgment of this Court in Jagjit Singh Puri v. Hari Dev Bansal Proprietor M/s Ashoka Tin Works, Mansa Road, Bathinda 2008(2) RCR 192, wherein this Court was pleased to lay down as under:

In Ram Nath Sao @ Ram Nath Sahu v. Gobardhan Sao 2002 (2) RCR 337 (SC) the principle of law laid down, was that the term ''sufficient cause'' in Section 5 of Limitation Act, and Rule 9 of Order 22 CPC, must 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 condonation of delay is a rule, and refusal an exception-No doubt, a valuable right accrued to the other party, should not be lightly defeated by condoning delay, in a routine manner. However, by taking a pedantic and hyper technical view, explanation furnished, should not be rejected when stakes are high and arguable points are involved-The Courts have to strike a balance. When the appeals are pending for long time, the parties are not expected to keep constant watch of the events. The Rule of limitation is not meant to destroy the rights but is to keep the cause alive, for such prescribed time and is meant to see that the parties do not resort to dilatory tactics. In State of Nagaland Vs. Lipok AO and Others, , the principle of law, laid down was to the effect that the Courts should be liberal in condoning the delay. Expression"every day''s delay does not mean that a pedantic approach should be adopted. It was further held in the said authority that unless want of bona fides or inaction or negligence is proved to deprive a party of the protection of Section 5, the application must not be thrown out. It was further held that mistake of the Counsel, by itself, is always sufficient cause, for condonation of delay. It is always a question, whether the mistake was bona fide or was merely a device, to cover an ulterior purpose. If the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Expression "sufficient cause" is adequately elastic. The Court is to apply the law in a meaningful manner which subserves the ends of justice, that being the life-purposes for the existence of the institution of Courts. Court should not adopt an injustice oriented approach, in rejecting the application for condonation of delay. In N. Balakrishnan Vs. M. Krishnamurthy, , the delay of 883 days, in filing the appeal was condoned, on the ground, that the same had been caused due to the failure of an Advocate, to inform the Appellant, as well as failure to take action."

Reliance was also placed on the judgment of this Court in Khema v. Smt. Ram Dei 2006(2) RCR 13, wherein this Court held, that party should not be allowed to suffer for the lapse on the part of the counsel.

The operative part of the judgment reads as under:

In Shrimati Chander Kanta v. M/s Sulekh Chand Sumer Chand 1978 PLR 423, this Court held that a party cannot be made to suffer for negligence of his counsel. In Rafiq and Another Vs. Munshilal and Another, , the Hon''ble Apex Court has held that at the time of hearing of the appeal, personal presence of the Appellant is neither required nor necessary when he engaged a counsel. So he should not suffer for laches committed by his Advocate.

Reliance was also placed on the judgment of the Hon''ble Supreme Court in Rafiq and Another Vs. Munshilal and Another, , which was relied upon by this Court in Khema v. Smt. Ram Dei (supra).

Finally, reliance was placed on the judgment of this Court in Pawan Kumar v. Surjit Kaur and others 2008(1) RCR 60 wherein again this Court by placing reliance on the judgment of the Hon''ble Supreme Court, laid down, that sufficient cause should be given liberal interpretation.

Mr. R.M. Suri, learned Counsel appearing on behalf of the non-applicant, on the other hand has opposed the application by pleading, that no explanation has been given in the application, with regard to the period between 30.7.2001 to 17.7.2007, nor it is disclosed that the applicant-Appellants ever visited Chandigarh or not during this period. The contention of the learned Counsel for the non-applicant, therefore, was that story put up by the applicant-Appellants, cannot be believed. In any case giving of liberal interpretation to word "sufficient cause", the provisions of the Limitation Act cannot be totally ignored, because it is also settled law, that the party claiming condonation of delay u/s 5 of the Limitation Act, has to show sufficient cause, even though it cannot be disputed, that the interpretation to be given to the "sufficient cause" should be liberal.

In support of the contention, that no ground for condonation of delay is made out, reliance is placed on the judgment of this Court in Swaran Singh v. Shri Dina Nath and others, CM No. 7539-C of 2008 and CM No. 7540-C of 2008 in RSA No. 2575 of 2008 decided on 18.8.2009, wherein this Court, dismissed the application for condonation of delay where similar plea was raised.

The finding recorded by this Court reads as under:

After giving my thoughtful consideration, to the contentions, raised by the Counsel for the applicant/Appellant, in my considered opinion, the applications, are liable to be dismissed, for the reasons to be recorded, hereinafter. It is to be seen, as to whether, in view of the averments contained, in the applications, under disposal, a sufficient cause is constituted for condonation of delay, and, whether the law of limitation is to be enforced with all its rigour or the question of limitation has to be taken as a mere formality. Rule 5 of Chapter 1, Part-A of the Rules and Orders of Punjab and Haryana High Court, Volume-5 (hereinafter referred to as "the Rules"), deals with the limitation for refiling the appeal which reads as under:

5 Amendment-(1) The Deputy Registrar may return for amendment and refiling within a time not exceeding 10 days at a time, 40 days in aggregate, to be fixed by him any amendment of appeal for the reasons specified in Order XLI, Rule 3, CPC Code.

(2) If the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under Sub-rule (1) it shall be listed for orders before the Court.

In view of the aforesaid rule, the returned appeal after removal/rectification of the objections, is required to be refiled within 10 days. However, the period can again be extended after the expiry of 10 days, for another 10 days and so on and, in any case, not exceeding 40 days in the aggregate.

In the present case, the grounds for condonation of delay of 7 years and 328 days, in instituting the appeal, and delay of 145 days, in refiling the same, taken in the applications, was that the applicant/Appellant, was not informed by his Counsel, about the status of the appeal, which stood already dismissed, on 06.01.2000, and after the appeal was filed it was received with certain objections, but was inadvertently put in some other brief of disposed of cases. It was also stated that with the efforts of the applicant/Appellant, as well as the Clerk of the Counsel, the briefs, were searched, and the appeal was traced, on 30.05.08. It could not be believed that the applicant/Appellant, had not bothered about the decision of his appeal, for a period of 7 years and 328 days. If he had not taken any interest, in knowing about the fate of his appeal, it was a palpable negligence, on the part of the applicant/Appellant. Under these circumstances, the explanation furnished, in the applications, could not be said to be satisfactory, by any stretch of imagination. There is, therefore, no sufficient cause to condone the delay of 7 years and 328 days in filing the appeal and 145 days in refiling the same. It is settled principle of law, that rigour of limitation must apply, where the statute so prescribes. Limitation cannot be condoned, on the basis of compassion or equitable considerations, or where the party seeking condonation appears to be callous or negligent. This view of mine, is supported by P.K. Ramachandran Vs. State of Kerala and Another, , wherein, it has been held, as under:

The law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time.

In Municipal Corporation of Delhi and Others Vs. Intnl. Security and Intelligence Agency Ltd., , the Apex Court, held as under:

21.... It has to be remembered that law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross-objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate Court the same grounds which he could have otherwise done by way of filing an appeal. This extended period of limitation commences from the date of service of the notice of appeal and such notice ought to be in a valid or competent appeal.

This is a case of total callousness and negligence, on the part of the applicant/Appellant. The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. The applications are liable to be dismissed."

Reliance was thereafter also placed on the judgment of the Hon''ble Supreme Court in P.K. Ramachandran Vs. State of Kerala and Another, , wherein the Hon''ble Supreme Court was pleased to lay down, that equity cannot be basis for extending the period of limitation.

The Hon''ble Supreme Court in P.K. Ramachandran v. State of Kerala and Anr. (supra) was pleased to lay down, that law of limitation, may harshly affect a particular party, but it has to be applied with all its rigor, when the statue so prescribes, and the Courts have no power to extend the period of limitation on equitable grounds.

If the proposition of law relied upon by both the learned Counsel for the parties, is applied to the facts of this case, no other conclusion, than the one, that no sufficient cause is made out to condone the delay of 5 years and 11 months, can be arrived at.

The basic plea taken in support of the condonation of delay is, that the earlier counsel of the applicant-Appellants had died without filing the application for bringing on record the legal representatives of the deceased-Respondent, nor he appeared in the Court. It was only after expiry of 5 years and 11 months that the applicant-Appellants came to know about the dismissal of the appeal in default.

It may be noticed, that in the present application, the ground taken by the applicants is, that they had come to get an application for bringing on record the legal representatives of the deceased-Respondent, drafted. Once, this was so, the applicants, therefore, were in know of the fact that the date has been fixed in the case, before which the application was required to be filed for bringing on record the legal representatives, of the deceased-Respondent.