S.S. Lal vs Radha Rani

Application IA No. 2174/2003, has been filed under Section 5 of the Limitation Act seeking condonation of delay. There is a delay of more than 430 days in filing this first appeal under Section 96 of C.P.C.

The appeal has been filed challenging the judgment and decree passed by 6th Additional District Judge, Jabalpur in Civil Suit No.78-A/2000 by which the plaintiff''s suit has been decreed and the appellant has been restrained from interfering in the peaceful possession of the plaintiff, further a declaration is also granted in favour of the plaintiffs on the basis of adverse possession. The delay of more than 430 days is explained in the application filed under Section 5 and, therefore, for the present we are required to see as to whether the delay has been explained in a reasonable and justifiable manner.

The judgment and decree in the suit was passed by the Court below on 30.11.2001 and this appeal was filed as indicated after a period of more than 430 days on 05.05.2003. It is said in the application under Section 5 that the appellants even though permanent resident of Jabalpur are not presently staying in Jabalpur their address in the cause title are given in Bhopal.

It is said that the case on behalf of the appellants were being contested by the Advocate Shri G.C. Bhatia and the counsel never informed the appellant about the judgment being passed in the suit on 30.11.2001. It is said that in the application that the appellant, asked one of their close friend at Jabalpur to contact Shri G.C.Bhatia to find out about the out come of the civil suit and it was only informed to them in the 2nd week of March, 2003. They were informed about the decision being rendered in the civil suit by the trial Court. It is said that after the aforesaid information was given in March, this appeal has been filed after obtaining certified copy on 17.03.2003 and the certified copy was delivered on 03.04.2003. It is further said that after the judgment was rendered on 30.11.2003 the appellant applied for certified copy on 17.03.2003 and obtained the certified copy on 03.04.2003. Thereafter appellant no.3 went to the office of the Advocate Shri G.C.Bhatia for collecting the file. The appeal was drafted and thereafter it was filed on 05.05.2003. Based on these assertion the application is filed for condoning the delay of more than 430 days. The respondents have filed a detailed reply to the same and refute each and every averments and they assert that the appellants were very much aware of the judgment and did not take any action.

It is stated by R.K. Sanghi that the application for condonation of delay is highly vague and unspecific. Learned counsel refers to para-2 of the application to say that neither the date on which the appellants asked their close friend to contact Shri G.C. Bhatia about the out come of the case nor the particulars of the friend, who contacted Shri G.C. Bhatia and various other important dates and details is also not given.

It is argued by Shri R.K.Sanghi that apart from no disclosure of this fact, affidavit of the close friend is not filed. The application for condonation of delay is only under the affidavit to Shri R.K.Verma one of the appellant who says that he has given the affidavit on the basis of information gathered from record. It is stated that he does not say as to how and in what manner the information was gathered by him.

Shri R.K. Sanghi, learned counsel for the respondents argues that in the facts and circumstance of the case, as the reason for delay has not been proper given and sufficient cause shown, therefore, it is not a fit case where the delay can be condoned. He also invites our attention to the following judgment in support of his contentions Geetarani Ghosh vs Bhagwatibai and Others. We have considered the rival contention and we find that there is a delay of more than 430 days in filing of this appeal and only reason given for delay is as narrated hereinabove.

It is the fact that various aspects of the matter for condoning the delay are not indicated by the appellant in the application. The particulars of the friend who contacted the counsel for finding about the out come of the case are not indicated. The affidavit of the friend had not been filed and the dates when the narration were made to the friend and the particulars indicate when the counter communication is received from him or not given and the application is vague and is unspecific in terms, for the purpose of condoning the delay in filing of the appeal. Even though it is held in various cases that a liberal view should be adopted but at the same time the sufficient cause for the delay has to be shown.

The Supreme Court in the case of Lanka Venkateswarlu vs. State of A.P., has held in Para-22 of the aforesaid cases after reproducing all the observation of the Supreme Court in the case of Balwant Singh vs. Jagdish Singh that once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it would be unreasonable to take away that right of the other party due to negligence caused of the applicant party. The matter have been considered by the Supreme Court in Para 22 in the following manner:-

The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:-

�25. We may state that even if the term �sufficient cause� has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of �reasonableness� as it is understood in its general connotation.�

�26. The law of limitation is a substantive law and has definite consequences on the right and obligation of the party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstance of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.�

Similarly in Para-26 the concept of approaching the matter in a liberal way and applying the justice oriented or deny the substantial justice is considered and the principle to be applied for considering a application under Section 5 is indicated in the following manner:-

We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such a �liberal approach�, �justice oriented approach�, �substantial justice� can not 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 pained 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 under Section 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. This discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.

Similar principle is laid down in the other case also relied upon by Shri R.K.Sanghi. In the case of Maniben Devraj Shah vs. Municipal Corporation of Brihan, Mumbai, again the expression �sufficient cause� appearing in section 5 of the Limitation Act is explained and the principles to be followed for holding there to be sufficient cause has been explained. If the facts and circumstance of the present case are analyzed in the backdrop of the said legal principles, we find that there was a delay of more than 430 days, no sufficient cause has been made out by the appellant to explain the delay. That apart in the application filed vital information particularly the date on which certain action has indicated in para-2 including the name of so called friend and the date when he met Shri G.C.Bhatia have not been considered. Taking note of all these aspects we are of the considered view that the delay of 430 days in this case is not properly explained. Sufficient cause for the delay is not indicated and there is no justification for this inordinate delay accordingly, we see no reason to allow the application. The application for condonation of delay is dismissed.

Consequently, the application is also rejected.