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Judgment
Ran Vijai Singh, J.—Civil Misc. Delay Condonation Application No. 15803 of 2008 is taken up for orders.
This is an application for condoning delay in filing the substitution application.
Heard Sri Sandeep Agarwal holding brief of Sri Rahul Sahai, learned Counsel for the applicants and Sri Ajit Kumar learned Counsel for respondent.
It is stated in the affidavit filed in support of delay condonation application that sole respondent Dambar Singh died on 16.1.2008 leaving behind his wife and three sons namely Smt. Phoolwari and Rajveer Singh, Kamal Singh and Lochan Singh. The reasons for not filing substitution application well within time appears to be an ignorance of the applicant.
A counter-affidavit has been filed on behalf of heirs of Late Dambar Singh stating therein that the contents of affidavit are false for the simple reason as the date of death of Dambar Singh has wrongly been mentioned in the affidavit as while filing written statement in the year 2006 in Original Suit No. 16 of 2006, Rajveer Singh and Anr. v. Vijay Kumar and Ors. it is admitted that Dambar Singh died in the year 2006.
Sri Ajit Kumar learned Counsel for respondent submits that delay condonation application deserves to be rejected for the reason that the date of death of respondent has wrongly been mentioned and it amounts to be a deliberate action on the part of applicants in not filing the substitution application well within time and mentioning wrong date of death is an effort to cover up limitation in filing the substitution application.
Refuting the submissions of learned Counsel for respondent, learned Counsel for applicants has submitted that the applicants are villagers and are not conversant with the legal implications and mentioning of incorrect date of death is neither intentional nor anything was going to be achieved by giving an incorrect date of death before this Court. In his submissions, looking into the rustic background of the applicants, delay in filing substitution application be condoned and substitution application be allowed.
No doubt, from perusal of affidavit in support of delay condonation application, it appears that date of death is incorrect in view of written statement filed by the applicants in Original Suit No. 16/2006, Now question would arise whether application for condonation of delay be rejected only on the ground of mentioning wrong date of death in affidavit or other relevant circumstances are also material to decide the application for condonation of delay.
Generally the Courts are taking liberal view in condoning delay in order to impart substantial justice to the parties, if delay is not inordinate or deliberate. The word ''deliberate'' has been defined in Law Laxicon as under:
Deliberate.--As an adjective, premeditated; formed with deliberation, not sudden or rash, carefully considering the probable consequences of a step; an act done after reflecting and weighing the matter well.
"Deliberate" means to weigh in the mind; to consider the risks for and against; to consider the risks for and against; to consider maturely.
As a VERB, to weigh in the mind; to consider and examine the reasons for and against; to consider maturely; to reflect upon; to reflect, with a view to make a choice.
To weigh, ponder, discuss, regard upon, consider. To examine and consult in order to form an opinion. To weigh in the mind; to consider the reasons for and against; to consider maturely; reflect upon, as to deliberate a question; to weigh the arguments for and against a proposed course of action. People v. Thomas 25 Cal 2d 880, 156, P 2d 7, 17, 18 (Black''s Law Dict.)
Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. Wilful rather than merely intentional. Formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan. Carried on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step slow in action; unhurried characterized by reflection; dispassionate; not rash. People v. Thomas 25 Cal 2d 880, 156 P 2d 7, 17, 18, (Black''s Law Dict.)
In Webster''s New Twentieth Century Dictionary the meaning of Deliberate and False is given as under:
Deliberate.--a [L. deliberatus, pp of deliberate, to consider, weigh well, from de, intens., and librate, to weigh, from libra, a scales.]
carefully thought out or formed; premeditated; done on purpose.
formed with deliberation; careful in considering; not sudden or rash; as, a deliberate opinion; a deliberate measure or result.
lacking rapidity; slow; unhurried; as, a deliberate move.
Syn.--careful, cautious, intentional, purposed, thoughtful.
De-lib''er-ate. v.i.; deliberated, pt, pp; deliberating, ppr. to estimate the weight or force or arguments, or the probable consequences of a measure, in order to make a choice or decision; to consider carefully and fully.
The woman that deliberates is lost.
--Addison.
de-lib''er-ate, v.t. to weigh in the mind; to consider and examine the reasons for and against; to consider carefully; to ponder on; as, to deliberate questions of state.
de-lib''er-ate-ly, adv. with careful consideration or deliberation; circumspectly; not hastily or rashly; slowly; as, a resolution deliberately formed.
From perusal of meaning of word deliberate it appears that for holding an act of a person deliberate, there must be satisfaction of the Court that the ''Act'' is premeditated not all of sudden and the statement has been made carefully considering probable consequences of step. Nothing has been brought to my notice by which it can be inferred that mentioning of wrong date was premeditated and was made after considering probable consequences. Generally knowledge of date of death is given by the litigant and it is thereafter skill of the counsel which put forth the matter in a proper format and proper language; here in this case even if the date of death of the respondent is taken of the year 2006, even then in view of explanation given in the affidavit, the condonation of delay was to be considered on its own facts. I am of the opinion that the statement on oath given by the person swearing affidavit in support of delay condonation application was not deliberate but it was an inadvertence or lack of responsibility or in other words laps on the part of the person swearing affidavit.
Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. The Apex Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , held that the expression ''sufficient cause'' employed by the Legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of courts. It was further observed that a liberal approach is adopted on principle as it is realized that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
''Every day''s delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
After referring to the various judgments in New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult, Brij Inder Singh v. Kanshi Ram AIR 1917 PC 156 ; Shakuntala Devi Jain Vs. Kuntal Kumari and Others, Concord of India Insurance Co. Ltd. v. Nirmala Devi 1979 (4) SCC 365; Lata Mata Din v. A. Narayanan 1969 (2) SCC 770 ; State of Kerala v. E.K. Kuriyipe and Ors. Milavi Devi v. Dina Nath 1982 (3) SCC 366 ; O.P. Kathpalia Vs. Lakhmir Singh (Dead) and Others, Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, : Prabha v. Ram Prakash Kalra 1987 Supp SCC 339 ; G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, The Scheduled Caste Co-operative Land Owning Society Ltd., Bhatinda Vs. Union of India and others, Binod Bihari Singh Vs. Union of India, M/s. Shakambari and Co. Vs. Union of India, Rama Kishen v. U.P.S.R.T.C. and Warlu Vs. Gangotribai and another, this Court in State of Haryana Vs. Chandra Mani and others, The Apex Court in the case of State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, has observed as under:
It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court--be it by private party or the State--are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits....
The expression ''sufficient cause'' should, therefore, be considered with pragmatism in justice oriented process approach rather than the technical detention of sufficient case for explaining every day''s delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit.
In the case of N. Balakrishnan Vs. M. Krishnamurthy, the Apex Court has held that the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The primary function of a court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack mala fides or is not shown to have been put forth as a part of dilatory strategy, the Court must show utmost consideration to the suitor. In this context it was observed:
It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter. Acceptability of the explanation is the only criterion....
In para 13 of the aforesaid judgment, it has been further observed that:
It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss.
The Division Bench of this Court in the case of State of U.P. and Ors. v. Jai Prakash Singh and Ors. (2003) 2 UPLBEC 1329, has condoned the delay of six years thirty days. The Court has observed that:
In our opinion, in the facts and circumstances of the case, the delay in filing the appeal deserves to be condoned. In G. Ramegowda v. Special Land Acquisition Officer, Bangalore AIR 1988 SC 897, it has been held that the expression ''sufficient cause'' occurring in Section 3 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In State of Haryana Vs. Chandra Mani and others, it has been held that the State stands on different footing and where the State is seeking condonation of delay a technical view should not be taken. In State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, delay of 679 days was condoned and it was held that the technicalities of law cannot prevent the Courts from doing substantial justice and undo illegalities. Having given our careful consideration to the submission made by the learned Counsel for the parties and the material on record, we are of the opinion that the delay in filing the appeal has been satisfactorily explained.
Another Division Bench of this Court in the Special Appeal No. 54 of 2005, State of U.P. and Ors. v. V.S. Khare and Ors. condoned the delay of ten years and 95 days on 15.3.2005 by passing a detailed order on the above reasonings.
In case of Ram Sumiran and Others Vs. D.D.C. and Others, the Apex Court has condoned delay and set aside abatement application and allowed substitution application holding that in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No. 5 should have been granted.
In view of law laid down by the Apex Court in the matter of condonation of delay and considering the facts and circumstances of this case delay in filing substitution application is condoned subject to payment of Rs. 250 as cost to the other side by. the last week of July, 2009. The cost may be paid through the counsel. In case, the cost is paid and receipt is filed along with an affidavit in registry, application for substitution be listed for orders in the second week of August, 2009.