Rajua vs Vanshi

Rohit Arya, J.—Today the case is posted for consideration of I.A. No. 1300/2005; an application filed u/s 5 of the Limitation Act for condonation of delay in filing the appeal.

This appeal was filed on 20/1/2005 and on 17/7/2014, Shri Mishra, counsel appearing for appellant prayed for and was granted a week time to address this Court on the question of limitation. Thereafter, on 23/7/2014, at the request of appellant''s counsel, case was ordered to be posted on 24/7/2014 on the question of limitation. None appeared on 24/7/2014 even in the second round. Under such circumstances, counsel for the respondent prayed for consideration of the aforesaid I.A. on the question of limitation. Accordingly matter was taken up as appellant''s counsel appears to be not interested as despite opportunity being afforded, he has not entered appearance to address this Court on the question of limitation. It is further submitted that this appeal is filed against the concurring judgment and decree passed by both the Courts below. As such, appellant does not appear to be keen to argue the I.A. and wants to keep appeal pending.

Having considered the submissions made, this Court having no option but to consider the I.A. on merits proceeded with the hearing.

The appeal, as per office report is barred by 966 days.

Respondent No. 1 has filed reply to the application.

Upon perusal of the averments made in para 2 of the application, it is revealed that Advocate R.C. Shukla was engaged to contest the appeal and all the documents were handed over to him. In para 3 it is stated that appellant was under the impression that Advocate R.C. Shukla has filed the appeal but due to sudden death of R.C. Shukla, appeal could not be filed. In para 4 it is stated that appellant has approached his office to know the progress of the appeal on 19/12/2004 and he came to know that Shri Shukla has died and his papers in the office were misplaced and therefore, appeal was not filed, thereafter, he returned back to Shivpuri and has requested his local counsel to get the certified copy of the impugned judgment and decree, which was delivered on 23/12/2004. In para 5, it is stated that with the aforesaid judgment and decree, he contacted Shri Vivek Mishra, Advocate to file the appeal in the High Court. But Shri Mishra advised him that without the judgment of trial Court, plaint, written statement and evidence, appeal can not be filed. Thereafter, in para 6, it is stated that he again approached the office of Shri Shukla to get back originals file and papers for preparing the appeal, but papers were not traceable and ultimately on 10/1/2005, he returned back to Shivpuri after loosing the entire hope of filing the appeal. In para 7 it is submitted that on 18/1/2005, when appellant was searching his old papers, he get Photostat copy of the judgment of the trial Court and then he immediately rushed to the Gwalior, prepared the appeal and filed the same on 20/1/2005.

With the aforesaid averments, the appellant sought condonation of delay in filing the appeal.

In reply to the aforesaid application, respondent''s counsel submitted that the explanation offered by the appellant can hardly be said to be an explanation inasmuch as it is a mere skeleton application without explaining the delay of 966 days. Without material facts, application lacks bona fide. It is inter alia contended that appellant has not stated the date on which he allegedly had gone to the office of Shri Shukla Advocate and the date of death of Shri Shukla. Appellant for two years 10 months period has not contacted his counsel and after such long laps of time claims to have visited his counsel on 19/12/2004. There is nothing on record to suggest as to whom the appellate met in the office of Shri Shukla and who has informed him about the death of Shri Shukla. Further as to whom did he contact in the office of Shri Shukla to search out the papers and was told that papers are misplaced at his office. Further once he was given to understanding that papers were misplaced and appeal was not filed under what circumstances he again visited the office of Shri Shukla to get back the papers and whom did he meet in his office and was told that papers are misplaced. As such it is asserted that explanation offered is mere concoction and does not borne out the facts.

Counsel for the respondent submitted that there is a long unexplained delay of 966 days. Law as regards scope of interference in the matter of condonation of delay u/s 5 of the Limitation Act is well settled and has referred to para 28 and 29 of the judgment of Hon. Supreme Court in the matter of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, and para 9 of decision of this Court in the matter of Pushpa Bai Kushwaha Vs. Santosh Kumar Gupta, which reads as follows:-

"28. We are at a loss to fathom any logic or rationale, which could have implied the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather painted to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.

The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.

Generally the application u/s 5 of Limitation Act is considered with a pragmatic and liberal approach, however, such approach should be justice oriented. I have already held hereinabove that there is no justification to condone the delay because there is no sufficient reason assigned in the application u/s 5 of the Limitation Act to condone the delay. Accordingly to me, while deciding the said application the Courts do not enjoy the unlimited and unbridled discretionary powers and the discretion of the judicial power should be exercised within reasonable bounds known to the law. The liberal approach would not include whims or fancies; prejudices or predilections. The valuable right has been accrued in favour of plaintiff/respondent after the decree was passed in his favour and it should not be lightly brushed on the basis of the averments made in the application which has no bearing and is not having any supporting documents to corroborate the averments. Thus, I am of the view that in this backdrop the decision of Supreme Court State of Nagaland (supra) relied by learned senior counsel for the appellant on facts is distinguishable and is not applicable but the decision of Lanka Venkateswarlu (supra) placed reliance by learned counsel for the respondent is squarely applicable. On this point I may also profitably place reliance upon another decision of Supreme Court State of Rajasthan Vs. Nav Bharat Construction Co.,

Having heard learned counsel for the respondent and upon perusal of the averments made in application for condonation of delay, in the opinion of this Court delay of 966 days caused in filing the appeal has not been explained with relevant material facts. The contents of application lacks factual details which are required while offering an explanation of delay to establish reasonability and bona fides of the explanation. Learned counsel for the respondent has rightly pointed out the missing relevant facts in the application as recorded hereinabove. In view of the fore goings and law as laid down by Hon. Supreme Court in the matter of Lanka (supra), this Court is of the opinion that appellant has failed to explain the delay of 966 days in filing the appeal. Accordingly, I.A. No. 1300/2005 is rejected. Consequently, the appeal is also dismissed as barred by time.