IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 43/2010 Reserved on:30.12.2010 Decided on:5.1.2011 ________________________________________________ Ved Parkash and another. …Appellants. Versus Shanti Swaroop. … Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Ajay Sharma, Advocate. For the Respondents :Mr. N.K. Thakur, Advocate. ________________________________________________________ Justice Rajiv Sharma, Judge. The appellants-plaintiffs has filed This Regular Second Appeal against the judgment and decree dated 5.1.2004 passed by the learned District Judge, Una in civil appeal No. 48/2002. This Regular Second Appeal is barred by 5 years, 9 months and 22 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. 99/2010 Case of the appellant-applicant, in a nutshell, is that the judgment and decree was passed by the first appellate court on 5.1.2004 and the copy of the same was supplied by the Copying Agency on 7.2.2004. He sought legal advice from the counsel, who was conducting the case and he informed that since another civil suit was pending, there was no need to assail the judgment dated 5.1.2004. It is in these circumstances, according to the applicant, the Regular Second Appeal, could not be filed within the prescribed period. 2. Respondents/non-applicants have filed detailed reply to the application. The version of the applicant is not believable. The Civil Suit No. 149/1996 has been decided by the learned Sub Judge 1st Class, Una on 31.5.2007. Thereafter, the present appeal has been filed only on 5.2.2010. The applicant has not given any sufficient and cogent reasons for condonation of delay in filing the Regular Second Appeal beyond the period of limitation. The grounds taken by the applicant are vague and sketchy. These grounds do not constitute sufficient cause for condonation of delay. Valuable right has accrued in favour of the respondents and the same cannot be taken away at this belated stage. 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. 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 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 4 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 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 5 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; 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 6 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. RSA No. 43/2010 In view of the dismissal of the CMP (M) No. 99/2010, this Regular Second Appeal is also dismissed. Pending application(s), if any, also stand disposed of. (Rajiv Sharma), J. 5.1.2011. *awasthi*