IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.251 of 2005. Date of decision:28.03.2011 Ram Nath … …Appellant Versus Chet Ram and Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.K.D. Sood, Advocate. For the Respondents: Mr.G.D. Verma, Senior Advocate with Mr.Romesh Verma, Advocate. Dev Darshan Sud,J. This appeal has been filed by the defendant against the order passed by learned Additional District Judge, Fast Track Court, Shimla, dismissing the application under Order 22 Rule 9 read with Section 151 of the Code of Civil Procedure as also Section 5 of the Limitation Act for condonation of delay in bringing on record the legal representatives of the sole deceased plaintiff Daulat Ram. 2. The deceased Daulat Ram had filed a suit for permanent prohibitory injunction praying that the defendant, appellant herein, be restrained from 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 interfering in the land comprised in Khasra No.9/1, measuring 88 Bighas and 10 Biswas, situated in Chak Sanahu, Pargana Palana, Tehsil Theog and mandatory injunction directing him to demolish the structure, if any, raised during the pendency of the suit. 3. On the pleadings of the parties the trial Court settled five issues. The learned trial Court granted a decree prohibiting and restraining the appellant herein from raising any construction over the suit land comprised in Khasra No.9/1, situated in Chak Sanahu, Pargana Palana, Tehsil Theog, District Shimla, H.P. A mandatory injunction of demolishing the structure raised on the part of this land, as depicted in Ex.P-3, was also passed. The defendant appealed. 4. It is undisputed before me that in the appeal the plaintiff was proceeded ex-parte as, despite service, he did not appear in Court. It was at a later point of time that the appellant had filed an application for bringing on record the legal representatives of the deceased plaintiff on the ground that he was unaware about the fact that such course of action should have not been followed. This application was resisted by the proposed legal representatives on the ground that the appellant knew about the death of the plaintiff and it was his duty to bring on record his legal representatives. The respondent also relied upon the fact that in one other pending case between the parties an application for bringing on record his 3 legal representatives has been filed in the year 2000. The learned Court holds that since the appellant is an educated person and a teacher by profession, it could not be accepted that he is a layman and in these circumstances it cannot be held that he was unaware about the course of action to be followed. The appellant now appeals against the decision of the learned Court below. 4. The law with respect to condonation of delay is now well settled. In Balwant Singh (Dead) vs. Jagdish Singh and Others, (2010)8 SCC 685 the Supreme Court has laid down the law as to what should be sufficient cause for condonation of delay. The Court holds:- “32. 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. 33. 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 4 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. 34. 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] 35. The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which 5 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. 36. 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] 37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (supra). In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the 6 application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under:- "13 (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words `sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant." (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending 7 appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects. (v) Want of "diligence" or "inaction" can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” We may also notice here that this judgment had been followed with approval by an equi-bench of this Court in the case of Katari Suryanarayana (supra) 38. 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 8 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 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.” 5. The Court has laid stress on the point that it is the quality of the explanation offered which is to be accepted as a reason for condoning delay irrespective of the length of delay. Adverting to the facts of the present case what I find is that after having obtained a decree in his favour, the plaintiff was proceeded ex-parte and remained as such. It is not but unusual that litigants often do not contact their lawyer and in this case all that can be said is that the petitioner was content with the fact that since the plaintiff was ex-parte the possibility and the only rational conclusion was that he did not want to contest the appeal. It was a clear indication that he did not 9 wish to oppose the appeal on the grounds as urged therein. Had some urgency been exhibited by the deceased plaintiff-respondent, he would have atleast made a representation in Court through a lawyer. True there is one factor which goes against the appellant that he had already instituted an application in a pending case in Theog but that was the case which was being contested by the parties. Here in this case the litigation was dormant and there is no gainsaying that the appellant could draw a legitimate inference that the respondent was not at all interested in contesting his appeal. It is in these circumstances that the view taken by the Court below is bordering as the hyper technical approach. This appeal is accordingly allowed. The order passed by the learned Court below is quashed and set aside. A direction is issued that the legal representatives of the deceased plaintiff-respondent be brought on the record of the case, the appeal be admitted on the record of the learned Court below and the case be proceeded with as expeditiously as possible. This will be subject to the appellant paying costs of Rs.6,600/- to the respondents on the first day of appearance, failing which this appeal will be deemed to be dismissed. 6. Parties to appear before the learned appellate Court on 30.6.2011. In case parties are not present, learned Court shall ensure that notice to the parties be sent after the first date of appearance. An effort 10 shall be made by the Court to dispose of the appeal as expeditiously as possible. March 28, 2011. (Dev Darshan Sud) (aks) Judge.