C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 Date of Decision: 11.09.2009 Ex-W/C Tirath Singh No. 82109009, BSF s/o Amar Nath, r/o H.No. 113, Street No.3, Shaheed Baba Deep Singh Nagar, District Jalandhar. ... Applicant/Appellant Versus 1. Union of India, through Secretary Ministry of Home Affairs, New Delhi. 2. Director General, BSF, Ministry of Home Affairs, New Delhi. 3. Inspector General, HQ, BSF, Jalandhar. 4. Commandant 10th BTN BSF c/o 56 APO. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Anju Sharma Kaushik,Advocate, for the applicant/appellant. SHAM SUNDER, J. This application under Section 5 of the Limitation Act, for condonation of delay of 15 years and 174 days, in filing the Regular Second Appeal, has been instituted by the applicant/appellant. C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -2- 2. According to the applicant/ appellant, he took part in operation 'Blue Star' while in the active service of Border Security Force and was badly injured on 06.06.1984 by gun shot injuries, fired by the terrorists. He remained under treatment of Military Hospital, Amritsar, Military Hospital, Delhi and Base Hospital, Jalandhar. He suffered 90% disability and was boarded out of service under medical category 'EEE'. It was stated that the applicant-appellant filed a suit claiming ex-gratia in the sum of Rs.75,000/-, from the respondents, which was, ultimately, dismissed by the Court of Sub Judge IInd Class, Jalandhar, on 17.09.1991. An appeal preferred against the judgment and decree dated 17.09.1991, was also dismissed by the Court of Additional District Judge, Jalandhar, on 16.11.1992. It was further stated that the applicant was never informed, about the result of the appeal, by his lawyer. It was further stated that the applicant enquired from his lawyer, a number of times, but he (applicant) was put off, on one ground or the other, for the reasons, best known to him. It was further stated that since the applicant/appellant was not keeping good health and was unable to travel frequently in a bus, he continued making representations to various authorities. It was further stated that, in the year 2008, C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -3- the officials of Punjab Legal Service Authority, came to the village and explained to the villagers, that they could get free legal advice, Legal Aid Counsel, as also other help required to pursue the litigation. The applicant, then consulted and showed them the previous judgments and other documents. It was further stated that the applicant was guided by the Punjab Legal Services Authority, officials and his case was referred to the Counsel. It was further stated that delay occurred, in filing the appeal, on account of the aforesaid reasons. 3. I have heard the Counsel for the applicant- appellant, and have gone through the documents, on record, carefully. 4. The Counsel for the applicant/appellant, submitted that there was no intentional and deliberate default, on the part of the applicant/appellant in filing the Regular Second Appeal, after such a long delay. She further submitted that since the applicant/appellant was badly injured, on account of the gun shot injuries, during terrorists action, in Operation 'Blue Star' and suffered 90% disability, he could not file the Regular Second Appeal in time. She further submitted that the applicant/appellant could not know about the result of the suit and the appeal, filed by him. She further submitted that it is settled principle of law, that the Court should adopt a liberal C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -4- approach in condoning the delay, in filing the appeal and every lis must be decided on merits, than by default. She further submitted that there was no malafide on the part of the applicant/appellant. She further submitted that no doubt, there is a long delay of 15 years and 174 days, in filing the Regular Second Appeal, against the judgments and decrees of the Courts below, recording the concurrent findings of fact, yet, there is sufficient cause for condonation of the same. 5. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the applicant/appellant, in my considered opinion, the application, deserves to be dismissed, for the reasons to be recorded, hereinafter. Before touching the facts of the case, in my opinion, the law on the point, is required to be stated and analyzed. The Apex Court in Binod Bihari Singh v. Union of India, AIR 1993 SC 1245 held as under:- “Limitation Act is a statute of repose and bar of a cause of action in a Court of law, which is otherwise lawful and valid, because of undesirable lapse of time as contained in the Limitation Act, has been made on a well accepted principle of jurisprudence and public policy...... The rules of limitation are founded on consideration of public policy and the provisions of Act dealing with the limitation are required to be interpreted with the approach which advances the cause of public policy and not otherwise. The intention of C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -5- the provisions of the law of limitation is not to give a right where there is none but to impose a bar after the specified period authorizing a litigant to enforce his existing right within the period of limitation (See AIR 1968 All. 246). The object of limitation laws is to compel a litigant to be diligent in seeking remedies in a Court of law and put a bar on the stale claims. The interest of the society requires that the party should be put to litigation keeping in view its nature. The law assists the vigilant and not those who sleep over their rights. It is also acknowledged position of law that law of limitation only bars a remedy and does not take away the rights of the Courts to adjudicate the lis according to law and do not revive the rights of the parties unless permitted under a particular statute. Principles of Section 5 of the Limitation Act correspond to Sections 331 and 337 of the Code of Civil Procedure of 1859 and were first introduced in the Limitation Act of 1871 and thereafter repeated again with some modifications of Limitation Act of 1877. The Limitation Act, 1908 extended the principle of the Section to applications for leave to appeal and to other applications to which the Act might be made applicable by or under a particular enactment for the time being in force. The section was again amended vide Act no.X of 1922 and keeping in view the long judicial experience and pronouncements made by various Courts. Section 5 has suitably been modified to achieve the objectives vide the provisions of Limitation Act No.36 of 1963. To attract the provisions of Section 5 of the Limitation Act a suitor is under an obligation to show that he had sufficient cause for not preferring the appeal or making application within the period of limitation prescribed under the said Act or under any other statute governing the filing of the C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -6- appeals of applications. Even though normally the grounds of sufficient cause have been spelt out by various pronouncements of different High Courts and the Apex Court yet no ground can be held to be generally applicable without exception. The question of existence of sufficient cause is to be decided on the basis of the facts and circumstances of each particular case. The Courts have found it difficult to generally define precisely the meaning of sufficient cause or sufficient reason. Making such an attempt would amount to crystalize into a rigid definition with judicial discretion which the Legislature has for the best of all reasons left undetermined and unfettered. Sufficient cause within the meaning of the Section must be a cause which is beyond the control of the party invoking the aid of the section and the test to be applied would be to see as to whether it was a bonafide cause, in as much as nothing could be considered to be bonafide which is not done with due care and attention . The person invoking the jurisdiction of the court for condonation of delay is required to satisfy the Court that he was unable to present his appeal in time on account of some misadventure or incapacity of the circumstances beyond his control or such sufficient cause which bonafide prevented him in filing the appeal within the prescribed limitation. Precisely, the meaning of the word sufficient cause and its scope should not be crystallized by any rigid definition.” The principle of law, laid down, in P.K. Ramachandran v. State of Kerala and another 1998(1) SLJ 626 (SC),was to the effect that the law of limitation may harshly affect a particular party,but it has to be applied,with all its rigor, when the statue, C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -7- so prescribes, and the Courts have no power to extend the period of limitation, on equitable grounds. The principle of law,laid down, in Raghubansh v. State of Haryana and ors, 1998(2) SLJ 1277,was to the effect, that it does not seem to be possible, to say complete good-bye, to the Limitation Act, and to hold that whatever be the delay and,however, unsatisfactory the explanation, the Court is bound to condone it. In G. Ramegowday v. The Special Land Acquisition Officer, Bangalor AIR 1988 (SC) 897, the Apex Court, held that the contours of the area of discretion of the Courts, in the matter of condonation of delays in filing appeals, are set out, in a number of pronouncements of this Court such as Ram Lal v. Rewa Coalfield Ltd.(1962) 2 SCR 762, AIR 1962 SC 361, Shakuntala Devi v. V. Kuntal Kumari, (1969)1 SCR 1006, (AIR 1969 SC 575), Concoro of India Insurance Co. Ltd. V. Nirmala Devi (1979) 3 SCR 694 , AIR 1979 SC 1666, Mata Din v. A. Naryanam (1970)2 SCR 90, AIR 1970 SC 1953, Collector, Land Acquisition v. Katiji (1987) 2 SCC 107, AIR 1987 SC 1353. It was further held that there is no general principle, saving the party, from all mistakes of its Counsel. Each case is required to be considered, on the particularities of its own special facts. The Courts are, however, required to give liberal construction to the provisions of Section 5 of the Act, in C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -8- advancing substantial justice and delay may be condoned where no gross negligence or deliberate in action or lack of bonafides is imputable to the party seeking condonation of delay. The gist of the principle of law, laid down, in the aforesaid cases, is to the effect, that if gross negligence or deliberate in-action or lack of bonafides, is imputable to the party, seeking condonation of delay, the same cannot be condoned, under any circumstances, and, in such like cases, the law of limitation is to be applied with all its rigour. 6. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, as to whether, in the instant case, there is sufficient cause for condonation of delay of 15 years and 174 days in filing the Regular Second Appeal by the applicant/appellant. The principle of law laid down in Smt. Tara Wanti v. State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32 a case decided by a Full Bench of this Court was to the effect, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -9- Precisely the meaning of the word sufficient cause, and its scope, should not be crystalized, by any rigid definition. In the application, the grounds taken up by the applicant/appellant, are to the effect that he received gun shot injuries on 06.06.1984, caused by the terrorists and remained under treatment of Military Hospital, Amritsar, Military Hospital, Delhi and Base Hospital, Jalandhar and suffered 90% disability, resulting into boarding out of service under medical category 'EEE'. If the applicant/appellant could file a suit on 16.11.1988 claiming ex-gratia in the sum of Rs.75,000/- from the respondents, which was, ultimately, dismissed on 17.09.1991 and prefer an appeal, against the judgment and decree of the trial Court, which was also dismissed, by the Court of Additional District Judge, Jalandhar, vide its judgment and decree dated 16.11.1992, then it could not be said that his disability was such, as he could not contact his Counsel, either himself or through his family members, relatives, friends or acquaintances. It also could not be imagined, that the applicant/appellant did not know about the result of the suit, as also of the appeal, referred to above, immediately after the decision thereof. On the other hand, the circumstances clearly go to establish that he was in the knowledge of the decision of the suit as a result whereof, he C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -10- filed an appeal. He was also in the knowledge of the decision in the appeal. If he slept over his right, and did not file a Regular Second Appeal, against the concurrent findings of fact, recorded by the Courts below, and adopted a callous and negligent attitude for 15 years and 174 days, the Court cannot come to his rescue. It appears that the applicant-appellant concocted a story that when the officials of the Legal Services Authority came to his village, he came to know that he could be helped by them, in the matter of filing an appeal, as also engaging a Counsel. A person, who could file a suit and, on the dismissal of the same, prefer an appeal in the first Appellate Court, knew the intricacies of the procedure, as also of law. The disability of the applicant/appellant did not stay, in his way, in filing the Regular Second Appeal. The grounds taken up, by the applicant/appellant in the application, under disposal, do not constitute a sufficient cause, for condonation of delay of 15 years and 174 days in filing the Regular Second Appeal. Since the deliberate in-action and lack of bonafides by the applicant/appellant are imputable to the applicant, in seeking the condonation of delay, the same cannot be condoned. In such like cases the law of limitation applies with all its rigour. The submission of the Counsel for the applicant/appellant, being without merit, must fail, and the same stands rejected. The C.M. No. 12902-C of 2008 in RSA No. 4341 of 2008 -11- application deserves to be dismissed. 7. For the reasons recorded above, the application for condonation of delay of 15 years and 174 days, in filing the Regular Second appeal, being devoid of merit, must fail and the same is dismissed, and, consequently, the Regular Second Appeal, is also dismissed, being barred by time. 11.09.2009 (SHAM SUNDER) dinesh JUDGE