IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 326 of 2008. Reserved on: 13.07.2011. Decided on 19.07.2011. _____________________________________________________ Pushinder Kaur and others. …Appellant. -Versus- Kishan Kapur and others. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant. : Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. For respondents No. 5 and 8. : Mr. Ajay Sharma, Advocate. Other respondents (except respondents No. 5 and 8) are ex parte. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 13.07.2005, passed by the learned Presiding Officer (Additional District & Sessions Judge), Fast Track Court, Kangra at Dharamshala, H.P. in Civil Appeal No. 141-D/04/01. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondents-plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) had instituted a suit for possession. The suit was contested by the appellants-defendants (hereinafter referred to as “the defendants” for brevity sake). 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - 3. Defendants No. 1 to 3 have filed a joint written statement. Defendant, namely, Shri Balbir Singh was proceeded ex parte. Defendant No. 5 has filed separate written statement. Replications were filed by the plaintiffs to the written statements filed by defendants No. 1 to 3 and 5. The issues were framed by the learned Sub Judge-I, Dharamshala on 27.03.1989. He decreed the suit on 11.05.2000. Thereafter, one of the defendants, namely, Mohan Singh has filed an appeal before the learned Presiding Officer (Additional District & Sessions Judge), Fast Track Court, Kangra at Dharamshala, H.P. on 07.08.2001. The same was dismissed by the learned first appellate Court being time barred on 13.07.2005. Hence, this Regular Second Appeal. 4. Mr. R.K. Gautam, learned Senior Advocate has vehemently argued that the finding recorded by the 1st Appellate Court that the appeal was time barred is contrary to the record. According to him, the appeal has been filed within the period of limitation after deducting the period spent for collecting the certified copy of the judgment of the trial Court dated 11.05.2000. 5. Mr. Ajay Sharma, learned counsel for respondents No. 5 and 8 has supported the judgment and decree passed by the first Appellate Court. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. Mr. R.K. Gautam, learned Senior Advocate, on the basis of the substantial questions of law framed, has argued that the appeal preferred by defendant Mohan Singh was within limitation if the period spent for collecting the certified copy of the judgment of the trial Court is deducted. In fact, this plea was - 3 - raised in paragraph No. 7 of the memorandum of appeal filed before the first Appellate Court. The Civil Suit was decreed by the trial Court on 11.05.2000. The certified copy was applied on 19.05.2000, which was ready and attested on 01.08.2000. It is not disputed that the defendant obtained the certified copy only on 17.07.2001. Thereafter, the appeal was filed on 7th August, 2001. 8. The defendant was required to move an appropriate application under Section 5 of the Limitation Act, seeking condonation of delay by explaining the delay satisfactorily by giving cogent reasons. The defendant has also not explained the delay in the memorandum of appeal, except stating in paragraph No. 7 of the memorandum of appeal that the period spent by him for collecting the certified copy was required to be deducted for the purpose of calculating the period of limitation. 9. The Court is of the considered view that the defendant has not led any tangible evidence to prove that there was sufficient cause for not filing the appeal beyond the period of limitation. The certified copy was attested on 01.08.2000 and the same has been collected on 17.07.2001. The period beyond the period of limitation is required to be explained, though not on day-today basis. The Court is supposed to be very liberal while dealing with the question of limitation. However, it is equally settled that the Courts cannot be oblivious to the rights which had accrued to the opposite party. The suit has been filed beyond the period of limitation, which has not been explained, as noticed above, at all by the plaintiff, accept asserting that the period utilized for obtaining certified copy was to be deducted. This plea cannot be accepted. - 4 - 10. Their Lordships of the Hon’ble Supreme Court in Balwant Singh (Dead) Vs. Jagdish Singh & Ors., AIR 2010 Supreme Court 3043 have held that the liberal approach does not mean doing injustice to opposite party. Their Lordships have held as under: “13. As held by this Court in the case of Mithailal Dalsangar Singh (supra), “the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally.” 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 concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as 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. The application filed by the applicants - 5 - lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR 1962 SC 361] this Court took the view: "7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree- holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the - 6 - appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269. It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;..." 14. In the case of Union of India v. Tata Yodogawa Ltd., [1988 (38) Excise Law Times 739 (SC)], this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the Special Leave Petition, the application for condonation of delay was dismissed. Similarly, in the case of Collector of Central Excise, Madras v. A.MD. Bilal & Co., [1999 (108) Excise Law Times 331 (SC)], the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order 22 Rule 9, CPC has been the subject matter of judicial scrutiny for considerable time now. Sometimes the Courts have taken a view that delay should be condoned with a liberal attitude, while on certain occasions the Courts have taken a stricter view and wherever the explanation was not satisfactory, have dismissed the application for condonation of delay. Thus, - 7 - it is evident that it is difficult to state any straight-jacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression `sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997]. The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means - 8 - adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005] 16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi- benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be - 9 - allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.” 11. Their Lordships of Hon’ble Supreme Court in Lanka Venkateswarlu (Dead) by LRs. Versus State of Andhra Pradesh and others, (2011) 4 SCC 363 have held that discretion under Section 5 of the Limitation Act should be exercised in a systematic manner informed by reason. Liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when Court finds no justification for delay. 12. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge July 19, 2011. 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