IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMP(M) No.1036 of 2010 in FAO No.409 of 2010. Date of decision: 05.05.2011 Tara Singh and Another … …Appellants Versus Ravi Dutt and Another … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellants: Mr.Jagdish Thakur, Advocate vice Mr.N.K. Thakur, Advocate. For Respondent No.2: Mr.Ashwani Kumar Sharma, Advocate. Dev Darshan Sud,J. This application has been preferred by the appellants praying for condonation of delay in preferring the appeal against the judgment and order of the learned Motor Accident Claims Tribunal, allowing the claim of the respondent herein and fixing the liability on the petitioners on the ground that the vehicle was being driven by a person not being in possession of a valid driving licence. 2. The dates on which the petition was filed, decision made etc. are not disputed. Appeal is barred by 335 days. The reason advanced by the petitioners is 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 that the counsel conducting the case before the Tribunal had not intimated the petitioners with respect to the decision taken in the case and it was only on 30.8.2010 when petitioner No.1 went to the office of his counsel and was informed that the case has been disposed of on 24.7.2009. At this, he made a request to the counsel to supply him a copy of the award upon which he was informed that the same would be done after he applied for it. 3. An application for supply of the copy was made on 3.9.2010 and thereafter it was prepared and supplied to the counsel on 15.9.2010 and the counsel supplied it to the petitioner on 20.9.2010. The case is that thereafter he visited the office of counsel at Shimla, but he was advised to bring the entire papers of the case which were not in his possession but were in possession of his counsel before the learned Tribunal below. He thereafter went to the office of his counsel and requested him to supply the entire set of documents. He has supplied the certified copies of the entire documents to him on 30.9.2010. It was thereafter that the appeal/application was instituted on 5th October, 2010. 4. Two issues were settled on the application, namely, as to whether the delay is bonafide and secondly the relief. The petitioner appeared as his own witness. He only states that he had visited the office of Shri Sarvjit Singh, Advocate, in May, 2010 to 3 inquire about his case, but he told him that it is still pending and he will send the copy of the decision as and when he will get it. On 30.8.2010, he again visited his office when he was told that his case has already been decided. On 20.9.2010, he was given copy of the award. Thereafter he took other actions. In cross-examination, he expressed his ignorance about the date etc. when he appeared in Court first time and when he has signed the power of attorney. He states that he did not attend the case on every date of hearing and came to know that the case had been disposed of on 24.7.2009 when he was informed by the learned trial Court Advocate on 30.8.2010. He then again says that he had met his Advocate in May, 2010 when he was informed that the case had not been decided. He changed this statement to say that he had met the Advocate in May, 2009. It is the entirety of the case set up by the petitioner herein. 5. What I find from the application as well as evidence on record is that the entire blame is now sought to be placed on the Advocate practicing before the learned trial Court or rather his actions/inactions which resulted for delay in instituting the appeal. There is nothing placed on the record to corroborate these statements. Reliance has been placed by the learned counsel appearing for the parties on the decision of the Supreme Court in Rafiq and Another vs.Munshilal and Another, AIR 1981 SC 1400. This 4 proposition of law is well settled. I do not find the evidence sufficient on the ground to establish this plea. Rather this plea is being used for putting the entire blame on the trial Court Advocate. The least which the petitioner could have done is to have corroborated the fact that he never visited his Advocate for such a long period of time. Even assuming that such evidence is not required, he only states in his application that he had gone there in May, 2010, but later on changes his statement to say that it was in May, 2009. I do not think that the petitioner has succeeded in showing that he was inactive during that period and that an assurance has been given to him that he would be informed about the decision of the case. To say that the evidence is unsatisfactory and seems to have been tailor made for the allegations made in the petition is but stating the obvious. 6. In Balwant Singh (Dead) vs. Jagdish Singh and Others, (2010)8 SCC 685, the Supreme Court has categorically held that it is not the length of the time or delay but the quality of explanation which should have been considered. 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 5 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 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 6 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 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 7 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 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 8 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 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 9 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.” 7. I do not find that this case is covered on any of the grounds considered by the Supreme Court in the judgment supra. This cannot be considered to be a sufficient cause made out for condonation of delay. I do not find that the petitioner has been able to 10 establish by sufficient qualitative evidence on the question of delay. In these circumstances, I find no merit in this petition which is rejected. FAO No.409 of 2010. Dismissed being time barred. May 5, 2011 (Dev Darshan Sud) (aks) Judge.