IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 188/2010 Reserved on:27.12.2010 Decided on:5.1.2011 ________________________________________________ Kishan Chand. …Appellant. Versus Ram Chand. … Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Vijay Veer, Advocate vice Mr. T.S. Chauhan, Advocate. For the Respondents :Mr. I.N. Mehta, Advocate. ________________________________________________________ Justice Rajiv Sharma, Judge. The appellant-plaintiff has filed This Regular Second Appeal against the judgment and decree dated 4.12.2002 passed by the learned District Judge, Bilaspur in civil appeal No. 105/2002. This Regular Second Appeal is barred by 7 years, 1 month and 18 days. The appellant has filed an application under section 5 of the Limitation Act, 1963 seeking condonation of delay in filing this Appeal. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 CMP (M) No. 351/2010 Case of the appellant-applicant, in a nutshell, is that learned first appellate court has passed the judgment and decree dated 4.12.2002 and the copy was applied on 12.5.2008 and the same was received on 23.5.2008 by the applicant. As per the contents of the application, the applicant is an old person, issueless and totally illiterate. It is also averred in the application that applicant is about 76 years of age and he was made to understand that appeal will be decided in his favour and he only came to know in the third week of April, 2010, when he was thrown out of his house that the appeal has already been decided against him on 4.12.2002. 2. Respondents have filed reply to the application. According to respondents, there are no sufficient reasons to condone the delay. It is also averred that the applicant has not explained what happened between 4.12.2002 to April, 2010. Applicant has filed rejoined to the same. The grounds taken in the application have been reiterated with additional ground that he met his counsel earlier at Bilaspur and thereafter came to Shimla in the first week of March, 2010 and was told to prepare documents, which he brought in the last week of April, 2010 to Shimla. 3 3. The Court is of the considered opinion that the provisions of section 5 of the Limitation Act are to be construed liberally. However, while doing so injustice should not be done to opposite party. In this case, the averments contained in the application are vague and sketchy. The version of the applicant is not believable. It cannot be presumed by any stretch of imagination that the applicant was not aware of the judgment and decree, which were passed on 4.12.2002 till 2010. He was represented by an Advocate Sh. P.K. Ahluwalia before the learned District Judge, Bilaspur. 4. The Court has to take into consideration the conduct and bona fide of the parties at the time of consideration of application, under section 5 of the Limitation Act. In case every application, under section 5 of the Limitation Act, is construed liberally and delay is condoned, section 5 of the Limitation Act will become otiose and redundant. 5. Their Lordships of the Hon’ble Supreme Court in Balwant Singh (dead) versus Jagdish Singh and others, AIR 2010 SC 3043 have culled out the following principles while dealing with section 5 of the Limitation Act, 1963: “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 4 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 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 5 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 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; 6 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;..." 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 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.” 6. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the application and the same is dismissed. There shall, however, be no order as to costs. 7 RSA No. 188/2010 In view of the dismissal of the CMP (M) No. 351/2010, this Regular Second Appeal is also dismissed. Pending application(s), if any, also stand disposed of. (Rajiv Sharma), J. 5.1.2011. *awasthi*