IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMP(M) No. 1091 of 2010 in C.R. No.: 78 of 2006. Reserved on: 01.06.2011. Decided on: 15.06.2011. ___________________________________________ Karta Ram Gupta and another. … Petitioners. Versus Ashwani Kumar Sharma (since deceased). … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioners : Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate. Rajiv Sharma, J.: CMP(M) No.1091 of 2010. Petitioners have assailed the judgment passed by learned appellate authority (Fast Track Court), Shimla, District Shimla in Rent Appeal No.3-S/14 of 2004/2000 dated 10th April, 2006. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. Respondent/landlord, Mr. Ashwani Kumar Sharma died during the pendency of the civil revision, on 9th April, 2009. Since the petitioners have not taken immediate steps for bringing on record the legal heirs of late Mr. Ashwani Kumar Sharma, the legal heirs of late Mr. Ashwani Kumar Sharma moved an application under Order 22 Rule 2 of the Code of Civil Procedure bearing CMP No.278 of 2010 seeking dismissal of the petition having abated. The application bearing CMP No.278 of 2010 was listed in the Court on 6th September, 2010. Thereafter, the petitioners moved the present application under Order 22 Rules 4, 9 and 11 read with Section 151 of the Code of Civil Procedure and Section 5 of the Limitation Act, for bringing on record the legal heirs of late Mr. Ashwani Kumar Sharma, The legal heirs of late Mr. Ashwani Kumar Sharma filed detailed reply to the same. Rejoinder was also filed by the petitioners to the reply filed by the legal heirs of deceased Ashwani Kumar Sharma. 3. Mr. Bhupender Gupta, learned Senior Advocate with Mr. Janesh Gupta, learned counsel for the petitioners has strenuously argued that the petitioners have explained the delay in filing the present application satisfactorily. He then submitted that petitioner No.1 is 86 years old and petitioner No.2 is suffering from various ailments including piles, kidney stone and heart problem. He lastly contended that the - 3 - petitioners were under the bonafide belief that the application for bringing on records the legal heirs shall be moved by the legal heirs of late Mr. Ashwani Kumar Sharma. 4. Mr. Ajay Kumar, learned counsel for the respondent has vehemently argued that the delay in filing the present petition has not been explained satisfactorily. He then contended that the application lacks material facts and the averments contained in the application with regard to various ailments of petitioner No.2 are sketchy and vague. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Mr. Ashwani Kumar Sharma has died on 9th April, 2009. Petitioners were informed by the legal heirs of the deceased by way of CMP No.278 of 2010, preferred under Order 22 Rule 9 of the Code of Civil Procedure, copy whereof was supplied to the petitioners on 10th August, 2009. It was listed for orders on 6th September, 2010. The order dated 6th September, 2010 reads thus:- “This application has been filed stating that sole respondent-Ashwani Kumar died on 9th April, 2009. The factum of his death is taken on the record of the case. Learned counsel appearing for the petitioner prays for and is granted four weeks time to take appropriate steps in accordance with law.” - 4 - 7. According to the averments contained in the application, the petitioners were informed by the learned counsel appearing on their behalf on 7th September, 2010 to take necessary steps for bringing on record the legal heirs of deceased Ashwani Kumar Sharma. There was no response to the same. Thereafter, the petitioners were informed by the learned counsel on 20th September, 2010 to take steps for bringing on record the legal heirs of late Mr. Ashwani Kumar Sharma. Ultimately, petitioner No.2 contacted the counsel on 20th September, 2010 and the present application was filed on 28th September, 2010. There is delay of one year and twenty three days in filing the present application. 8. According to Mr. Bhupender Gupta, learned Senior Advocate, the application could not be filed since the petitioner No.1 was 86 years old and petitioner No.2 was suffering from various ailments including piles, kidney stone and heart problem. According to him, his client had remained hospitalized in Harmony Heart Centre, Mohali. Petitioners have not placed any tangible material on record to establish that petitioner No.2 has remained hospitalized in Harmony Heart Centre, Mohali. Petitioners have also not placed any material on record to prove that petitioner No.2 had been visiting Malerkotla for his treatment. Mr. Ashwani Kumar Sharma has died on 9th April, 2009. The factum of his death - 5 - was brought to the notice of the petitioners by way of CMP No.278 of 2010. The notice of this application was also served upon the learned Advocates on 10th August, 2009 and the application was listed for orders, as noticed above, on 6th September, 2010. It was incumbent upon the petitioners to move an appropriate application immediately for bringing on record the legal heirs of late Mr. Ashwani Kumar Sharma. The petitioners had been informed by the learned Advocate on 7th September, 2010 and on 20th September, 2010 as well. The petitioners were not diligent in moving the present application within reasonable time. The petitioners have not even given the name of servant, who has received the information/notice on 7th September, 2010 in the application. However, his name has been mentioned in the rejoinder. There is no force in the contention of Mr. Bhupender Gupta, learned Senior Advocate that his clients were under the bonafide belief that the application for bringing on record the legal heirs of deceased Ashwani Kumar Sharma was to be moved by his legal heirs and not by the petitioners. The petitioners are represented by the learned Advocates. 9. It is true that the approach of the Courts should be liberal so far as the applications filed under Section 5 of the Limitation Act are concerned and the matter should be decided on merits. However, the Court cannot be oblivious to - 6 - the valuable rights which have accrued to the opposite side due to inaction on part of the other party. In the instant case the application lacks details. The averments contained in the application ex-facie lack bonafide. The explanation for condonation of delay must be plausible and reasonable. The petitioners have failed to explain the delay by showing sufficient cause and their conduct also lacks bonafide and in these circumstances, it will be unreasonable to take away the vested right which has vested in favour of the other party. 10. 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 (paras 13 and 16): “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 - 7 - 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 injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad - 8 - 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 - 9 - 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;..." 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 equal-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 - 10 - 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.” 11. In a recent judgment Lanka Venkateswarlu (dead) by LRs. Versus State of Andhra Pradesh and others, (2011) 4 SCC 363, their Lordships have held as under (paras 19, 23, 28 and 29):- “We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay o the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in Collector (L.A.) v. Katiji. The concepts of liberal approach and reasonableness in exercise of the direction by the courts in condoning delay, have been again stated by this Court in Balwant Singh, as follows: (SCC p.696, paras 25-26) “25. 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 party concerned. The purpose of introducing liberal construction normally is - 11 - to introduce the concept of ‘reasonableness’ as it is understood in its general connotation. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise (sic a lis). These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has 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.” We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as “liberal approach”, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. In our opinion, the - 12 - approach h adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language e in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.” 12. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this application and the same is dismissed. C.R. No.78 of 2006. 13. In view of dismissal of CMP(M) No.1091 of 2010, the present revision petition is also dismissed having been abated, so also the pending application(s), if any. No costs. (Rajiv Sharma), Judge. June 15, 2011. (sck).