IN THE HIGH COURT OF JUDICATURE CHHATTISGARH A' BILASPUR M.A. N0.(°^0/ 2QQ6 f7?^ Appellant ^fApplicant) A Respondents .(Claimants) ^- ^ ^Hitendra Kumar Diwaji S/o Late Balramdhar Diwan Aged about 35 years, R/o Sundar Nagar, Raipur. Versus Smt. Kiran Verma, W/o Late Rajaram Verma. M ^ ^-. ^ Ku. Smriti Verma, \w^ ^>w^ .^'j?\y M^ 'W w ^' ^ ^' ^' <^-" ^' (Non-Applicants) 3. ^' VL •'54. >'' 5. 6. D/o Late Rajaram Verma 15 yrs. Ku. Tasi Verma, D/o Late Rajaram Verma 10 yrs. Res. No. 2 & 3 Minor through: Mother & Natural Guardian, Res. No, 1 Smt. Kiran Verma, Res. No. 1 to 3 R/o Subhash Ward, Near Maa Durga Chowk, Jagdalpur. Baksu Ram Verma, Aged about 68 years. Smt. Keja Bai, W/o Baksu Ram Verma 62 yrs. Res. No. 4 85 5 R/o Vill. Kardihi, Post- Bhatsoj, Teh. 85 Distt. Raipur. Ibrahim Miya, S/o Bandhu Miya 50 yrs, R/o^alibadi, Raipur. United India Insurance Company Ltd. Through: Branch Manager, Jagdalpur. ,7.y/TheUnit( u •^'" Miscellaneous appeal U/0 43 Rule l(d) ofCode ofCivil Procedure Y.^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT Applicant RESPONDENTS (Claimantst M.A. No. 1000 OF 2006 Hitendra Kumar Diwan Versus Smt. Kiran Verma & Others. Postfor^-03-2010 Sd/- N. K. Agarwal Judge HIGH COURT OF CHHArTBGARH AT BILASPUR IVL.A.No.l 000 of 2006 Appellant Applicant Respondents (Claimantsl Hitendra Kumar Diwan Versus Smt. Kiran Verma & Others I—-= Miscellaneous appeal under Sectton 43 Rule 1 (d) of CPG (Sinate Bench: Mon*ble Mr. N.K. Aaarwal. J<1 Present Shri PrafuU Kiarat, Advocate for ttie appeHant. Shri Om Prakash Yadav, Advocsrte for respondentNo. t to 3 appeare on behalfofShri Subhash Yadav, Advocate. Shri Sanjay S Agrawat, Advocate for respondent No. 7. None for other respondents. ORDER (Passedon ^ dav 6f March, 2010) The instantappeal is directed against the award ctated 04.07.2006, passed by the IHrd Additional Motor Accident Claims Tribunal, Jagdalpur (for short the Tribunal') In mtseellaneoi®daim©aseNo. 01/(^, whereby and whereunder the appenant's apptteation frted under Order 9 Rute 13 of GPC for setting aside exparte award tws been dismissed holding it as time barred. The brief facts of the case are ttot, on 16.12.1998, Tribunal passed the award in claim case No. 21/97 atongwith ether claim case Nos. 22/97, 23/97 and 24797, awarcHr^ compensation in favour of claimants holding the appellant h@'ein liabte as owner of the vehtele, exonerating the insurance company froffi tts liability to pay compensation on the ground of brea^i of poliGy. The Tribunal proceeded ex-pa/te against the appellani on 27.07.1998 and thereafter, award was passed ex-pavte agalnst the appellar*. 6. ^ The appellant herein filed an applicatlon under Ordw 9 Rule 18 of CPC alongwith application under Sectton 5 of the Umitatton Act inter-alja on the ground that ie appellant has engagedfhe ceunset and used to appear through his counsel in the case and only in case of necessity the appellant personally used to appear before the Tribunal. He came to know about the award dated 1Q.12.1998 on 09.04.2005 through his Advocate friend Shri Arun Da®and then he came to know that on 27.07.1998 the Tribunal has proeeeded ex-parte agajnst him. It was further stated that to oth®:slmitar cases, the insurance company has been held liable. His Advocate never informed him about the ex-pa/feproceeding in the ease, and therefore, ex-parte decree award deserves to be set asicte and the delay, if any, deserves to be condoned. The appellant examlned himself but none has been examined by the respondeni The court below \4de its order impugned, dismlssed the applieation flled by the appeltant holcBng itas time barred. Shri Prafull Bharat, teamedcounset appearhg forthe appeltent, by placing reliance upon the judgment of Supreme Court incases of N. Balakrishnan v. M. Krishnamurftiy1 and M.K. Prasadv. P. Arumugam2 submits that the court below has erred to dismissing the appellanfs applieation for setting astele ex^psrt®award, as watl as the applteation for condonation of ctelay. Per contra, Shri Sanjay S Agrawal. leamedGounselappeadngfor respondent No. 7/insurance company, by placing reliance uponthe ll998(7)SCei23 2 2001(6)8cc 176 8. judgment of Suprenae Gourt in case of P. ^4ani Moopanar v. K. Rajammal and others3 submits that the court toel&w hs®ris^ly dismissed the applicatton and the order deserves to be i^>held. 1 have heard the counsel appearing for the partiea, perused the order impugned and records of court betow. As perthe evidence adduced toy ie appeftant heretei, NsActe^ocate Shri Tarun Chouhan assured hlm that (he appeltaiat wW not toe required to attend the court personaUy and whenever his pcesence would be necessary, he will call the app^larA. On 27.07.1^8 when the case was proceecled ex-parte agatnst the appellant, the appeltant was ne'rther called nor infomied by hls Advocate. He only came to know about the ex-psrfeawanl on ©9.04.2005ora th@ basis of information received from Shrt Arun Das i.e. friend of appellant. In ©rossexamtnation, para 18, it has been stated that after filingof written statement in the year 1997 the appellant is not in touch with his Advocate tBI now. The Supreme Court in case crf N. BalafcrishBian (Supra) has observed in para 8 to 13 as under: "8. The appellanfs conduct does not on »iewhote wafrant t@ castigate him as an irresponsible lifigant. What he did jn defending the suit was not very much far from ^sA a liBgant woutel broadly do. Of course, 1t may be said that he shoiitd have been more vigilant by visiting his advocate at^short intervals to check up'the progress ofthe litigation. But chiring these days when everylwdy is fuBy occi^aled wth his own avocation of life an omissiQn to adopt syeh exfra ^gilaiwe need not be used as aground to depict him as a Ittigant iwt aware of his responsibTlities. and tb visit him witfdrastic consequences. 9. It te axiomatic that condonation of detey is a matter of discretion ofthe court. Section 5 ofthe Limitsiljon Act does not that such discretion can be exercised only If the €elayis lin a certain limit. Length of delay is nomatter. acoeptabtUfy ofthe explanation is the onty criterion.Sometimes delay (rfthe shortest range^ may be uncondonabte due toa want of acceptable explanafion whereas bi certain other cas®s,delay of a ve»y long range can be condoned as the explsmatioh ' 2005 (ll)SCC 800 y te^i^^ yMSS% thereofis satisfiactory. Once the covrt acc^pts the explanation as sufRcient, it js the result of positlve exerdse of discretion and normally thesuperior court should not dlsturb such finding, much less in revisional jurisdiction, untess the ©xercise of discretion was on wholly unlenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its <wh finding even unframmelled by the conclusion of the Jower court. 10. The reason for such a different stanc®is ftius: The primary function of a court is to adjudicate Vhe dlspute between the parties and to advance substantial justice. The tirtte-ljmjt fixed for approaching the court in different situattons js not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy th®rights <rf parties. They are meant to see that parties dojncA r^ort to dilatory tactics. but seek their remedy promptly. The object of providing a legal remedy is to regair the daniage caused by reason of legaT injury. The law of limitatipn fixes'a Itfespan fo'r such lega^remedy for the redress of the legal ir^ury so suffered7 Time is predous and wasted Ume "would riever revisit. During the efflux of time, newer causes would sprout up necessitaling newer persons to seek legal remedy by approaching the'courts. So a IHtespan must befixed for ®ach remedy. Unending period for launching the remedy inay tead to unending uncertainty and conseciuential anarchy. Tde law of limitation'is thus fouhded on public policy. It is ehshrined in the maxim intefest r^pi^licae up wt Hms WSum Qt is for the general welfare that a period b@ put to litigaliori). Rules of nmitation are not meanf to destroy the righte of the parties. They are meant to see that parties do not resort to dilatory tactics but seek tiieir remedy prompUy. Ttie idea is that every tegal remedy must be kept alive for a legislatively fixed period oftime. 12. Acourt knows that refusal to cpndone delay wo^ild resutt in forecl<^ing a suitor from putting forth his cause. There te no presumption that delay in approaching the court is ahn^ys deliberate. This Courf has held that'the words "sufRcieirt cause" under Section 5 of ttie Umitation Act should receive a liberal construction so as to advance substantial jusfce yide Shakuntela Devi Jain v. Kuntal Kumsri^ and Steteo^W.B. v. AdminisfyBtor.Howrah MunicipaSty. 13. It must be remerabered that in every case of delay. there can be some lapse on ttie part of the litigant concemed. That alone is not enough to turn down bis ptea and toshut the ^toor against him. Ifthe explanation do^ not snwck of mala fides or 'rtts not put forth as part of a dilatory strategy. ttie coyrt mus* show utmost consideration to ttie suitor. But when ttiere is reasonable ground to think that the delay was ocrasioned by the party deliberately to gain time, then the c<wrt shoyld tean agafnst 'acceptance 'of tie ©(planatlon.White condoning tie delay, the court should not forget the opposite ^irty altogether. It must be borne in mind'that he is a Iwer and h® too wquld haye incurred quite large litigatiQn e)qaens9s. It would be a salutary guidelihe that when courts condQne ttie delay due to laches oh the part pf the applteant, ttoe court shall compensate the opposite pariy for his loss." 10. The Supreme Court in case of M.K. Prasad (Supra) has observed in para 10 as under: —- 11, "10. In the instant case, the appellant trted to explainthe detay jn filjng the application for seffing aside the ex parte decree a^ is evident from his application filed under SecUwi 5 pf ttie Limjtation Act accompahied by his own aflktevit. Even though the appellant appears notto be as vigilantas he ought to have been, yet his conduct does not, on the whote, warrant to castigaie him as an jrresponsible IJtigant. He sheuld have been more^vigilant but his failure to adqpt such exb-a y^ilance should ribt have been made a groundfor ousting himfrwn ttie litigation wMh respect to the~ pro|wrty, concededty to be vaTuabte. While deciding the applicatipn for setting astete the ex parte decree, the court shbuld have kept Jn mind the judgment impugned, the extent of ttie properiy involyed and ie stake of the parties. We are of the opinion that the inconvenience caused to the respondent for ttie delay on account of the appellant being absent from the <»urttn ttiis case can be compensated 1?y awarding appropriate and exemplary costs. Iri the interests of justice and undw the peculiar circumstances of the case, we set aside^th^ or<ter impugned and condone the delay in filing ttie applfcafion for settin^ aside ex parte decree. To avoidftirther ctelay. we have examfned tiie merite of the main application and feel that sufficient grounds exist for setting aside the ex part®decree as well." The Supreme Court in case of P. Mani Moopanar (Supra) has observed in para 4 & 5as under : 12. "4. The High Court was required to go into the qu^tion of sufficiency of cause shown to condone the jnordinate delay of 2598 days which it did not doand, instead, proceeded to allow the revision petittons on takingan overalt view ctftfie raatter on merits. 5. In our view, the High Court has erred in reiyereing the ordw of the tri^ court refusing to condone the delay. It wasopen to the High Court to accept the explanation given by Uie respondents for condoning the delay but, without setting 8®ide the findings of the trial court on the sufRciency of cause shown, it was not permissible to the High Ck>urt to enfeer into the merits of the dispute and condone the delay." Further, the Supreme Court in case of Saltl Dutta v. T.M. And M.C. Private Limited4 has observed in para 5,7 Sc 8 as under: "5. Since flie judgment under appeal is excli^h^y based upon the decision of this Court jn Rs^q it is necessary to ascertetn what precisely does the said ctecision say. The appellant, Rafiq had preferred a second appeal in flw AIIahabad High CoHrtthrough an advocate. hMs advocate was not present when ttie second appeal was taken up for hearir^i with the resutt it was dismissed for default. The appeltant then moved an application to set aside the order of dismissal f@r default which was dismissed by the High Court. The correctness of the said order was questioned in this Court. The matter came up before a Bench comprising D.A. Desai 41993(2)8cc 185 6 and Baharul Islam, JJ. D.A. Ctesai, J. speaking for ttie Bench observed thus: (SCC p. 789, para3) "The disturbing feature of ttie case is that under our present adversary l^al system where the parties generally appear throi^gh tteir advocates, the obligation of the parttes is to select his advocate, brief him. pay the fees demanded hy him and then trust the leamed Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowtedge of the court's procedure. After engaging a lawyer, the parfy may remain supremely confident that the lawyer wilt look after his interest. At the time of the hearing of the appeal, the personal appearance of ttie party is not only not required but harcUy useful. Therefore, the party having done evorything in his power to effectively participate in the proceedings can rest assured that he has neither to 90 to ttie High Court to inquire as to what is happening in the Hi£^i Court with regard to his appeal nor is he te act as a watchdog of the advocate that the tatter appears in the matter when it is listed. It is no part of his job." 7. The question is whether the princ^pte @f the said decision comes to the rescue of the defendsmt res(»nd®nt herein. Firstly, in ttie case before us it was ndl an appeal preferred by an outetation lifigant but a suit whfeh was posfted for final hearing seven years after the institution of ttie suit. The defendant is a priwte limtted company having its registered office at Calcutta Hself. The persons In charge of the defendant-company are not rusHc villagere nor they are innocent ill'rterates unaware of court procedures. Prior to the suit coming up for final hearing 011 June ©.1988 the defendant had filed two applications whereupon the court ordered that they will be considered at the tirne of the final hearing of the suit. The plaintiffs case no doubt is that the sald apfrfica^ons were part of dela^ng tactics being adopted by the d^endant- tenants with a view to protract the suii Be thsrt as it may, ttie defendant thereafter refused to appear before the court. According to the defendant, their advocate advised them that until the interlocuiory applications fited by them are dispwed of, the defendant ne®dnot appear befoee the court which means that the defendante need not appear at the firwl hwiring of ttie suit. It may be remembered ttiat the cairt proposed to consider the said interiocutory applteatioos at the final hearing of the suit. tt is difRcult to belleve ttiat (he defendants implicitly believed thelr advocate's advice. Being educated businessmen they would have known ttiat non- participalion at tiie final hearing of the ^iit wovld neeessarity result in an adverse decision. Indeed we are not prepared to believe that such an advice wss in fact tendered by the advocate. No advocate worth his salt would give sucfe adwice to his client. Seeondly, the several contradicfions in his deppsition which are pointed out by the Division Bench in ttie impugned order 90 to show that the whole story is a latM" ^ fabrication. The following are Uie observations mad®in the judgment of ttie DMsion Bench wittirespect to the condud of the said advocate: "We found that the said teamed advocate conducted the proceedings in a most improper nrenner and that his absence on June 10, 1988 and on subsequent dat® was not only discourteous but possjbly a dereUcUon of duty to his client ... the tearned adyocate had forgertlen his professional duty in not malcing inquiry to thecourt as to wtiat happened on June 10, 11 and 13, 1988 ... the teamed advocate acted in a most perfunclory manner in Uie raattw and the tearned advocate deatt with the matter in a most unusual manner. We have also found fhat th®said learned advocate had made serious contradiction in the depo^tton before the court betow. The leanaed advocate in his deposition stated that he did not fite an appllcation for adjoumment <ai June 9,1988. But from the record it was evident that it was on the basis of the application fited on June 9, 1988, the case was adjourned for cross-examination of the witnesses whose examination was called on the next date." The above facts stated in the deposition of the advocate show that he ind^d made an application for adjournment on June 9, 1988 to enabte him to cross-examine the witnesses on th®next date. Therefore, his present stand that he advised his client not to partidpate in the frial from and induding Jyne 9, 1988 onwards ts evidently untrue. We are, therefore, of the opinion that the story set up by the defendant in his applica^on under Order 9 Rule 13 is an after-thought and ought not to have been accepted by the Division Bench in its order dated March 3,1992— more particularly when it had rejected thsveiy ease inits eariier judgment dated July 8,1991. 8. The advocate is the agent of the party. His acts and statements. made wtthin the limits of authority glven to him, are the acte and statemerats of the principal i.e. the psrty wh© engaged him. It js true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate wlwre it finds that the dient was an innocent litigant but there is no sych absolute rute ttiat a party can disown its advocate at any time and seek relief. No such absolute immunify can be rwognised. Such an abs<rfute rule would make the working of the s^tem extrwiefy difficylt. The observations made in Rafiq^ must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. ^ we have nwntioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the court is located. The defendant is also not a ru^jc ignorant villager but a private limited company wtth ite head- office srt Calcutta itself and managed by educated businessmen who teiow where their interest lies. is evident that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear before the court. h4aybe, it was part of ttieir elelaying tactics as alleged by the plaintiff. Maybe not. But one thing is "^^5^!^ clear — they chose to non-cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indutgence. Putting ttie entire blame upon ttie advocate and trying to make it out as i( they were totally unavwire of the nature or signifirance of the proceedjngs is a theory which cannot be accepted and ought not to have been accepted." 13. In view of law laid down by the Supreme Court in the dicta of above referred cases, the posiUon of law may be summarized as under: i. The primary functton of a court is to adjudteate the dispute between the parties and to advance substanUat justice. il. Condonation of delay is a matto' of discretjon of the court. Section 5 of the Limitation Act does eiot say that such discretion can be exercised only if the delay Is wtthin a certain limit. Length of delay is no matter, aeceptability of the explanation js the only criterion. Sometimes delay ofthe shortest range may be uncondonatole due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. iii. Even though the appellant appears not to be as vigilant as heought to have been, yet if his conduct does not, on the whole, warrant to castigate him as an Irresponsible litigant then his fatlure to adopt such extra vigilance should not have been made a ground for ou^ing tiim from the litjgation. iv. The trial court was requlred to go into the c^iestion of sufficiency of cause shown to condone the inordiRate delay. v. It is open to the High Court to accept the explanation glven by the respondents for condoning the delay but, without setting aside the findings of the trial court on the suffidency of cause shown, it is not permissibte to the High Court to enter into the merite (rf the dispute and condone the delay. vi. The advocate is the agent of the party. His acts and statements, made within the lim'rts of authority given to him, are the acts and statements of the prinoipal i.e. the party who engaged hlm. It is true that in certainsttuations, the court may, in the interest of |ustlce, sot aside a dismissal order oran ex-parte decree notwtthstanding the negligence and/or misdemeanour of e advocate where it finds that the client was an innocent litigant but there ts no such absolute rule that a party can disown fts advocate at any time and seek relief. 14. By applying the aforesaid proposition of law in the facts and circumstances ofthe present case, ft is clear that theappellant has been proceeded ex-parte not only in one case but In claNn case Nos. 21/97, 22/97, 23/97 and 24/97. He is not rustte viHagers, but is bus owner and further he is not innocent litigant unaware ofcourt procedure. As per his own statement, he never tried to contact his counsel after 1997 till 2005 l.e. for about 7-8 yeare. Every litigant knows that in clalm case/civil suit, the parties are required to adduce evidence after filing of written statemerrt. It is highly improbabte that the appellanMit^ant will notkeep hiro in toueh with his Advocate for a period of 7-8 years wtthout their being gross negligence on his part. More so, when the lit^art/party is businessman who knows where his interest \\es. 15. The case on hand appears to be a ©aseof gross negligence of appellant in prosecuting his case. Although Section 5 of Limitation Actmust receive a liberal construction so as to advanc^ substantial justice and generally delay may be condoned in (he tnterest of 10 justice but where a litigant is so grossly negllgent that he has not taken care of his case for about 7-8 years, then it cannot be said that court below has exercised its dlscretion in rejecting the application for condonation of delay in an arbitrary manner. 16. From the aforesaid circumstance of the case, this court is of the opinion that the appellant has failed to show sufficient cause for condoning the delay in filing the application for setting aside ex- parte award. 17. In view of for^oing, in the considered opinion of this court, the appeal being devoid of substance is liable to be and is hereby dismissed. No order asto costs. Sd/- N. K. Agarwal sahu Judge