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Judgment
Rajesh Tandon, J.—Heard Shri Manoj Tiwari, counsel for the appellant and Shri Alok Singh assisted by Smt. Mamta Joshi, counsel for the respondent.
By the present second appeal filed u/s 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 17th September, 1997 passed by the District Judge, Hardwar, by which the application 5 ga (2) u/s 5 of the Limitation Act has been rejected and consequently the appeal has also been dismissed.
Aforesaid appeal was admitted on following substantial questions of law:
Whether the first appellate court erred in law in rejecting the appellant''s application u/s 5 of the Limitation Act, 1963, in entertaining the appeal against the judgment and decree dated 05.02.1997, passed by the trial court in O.S. No. 325 of 1992?
Whether the provisions contained in Section 108 of the Evidence Act can be used only as defence and not in support of cause of action claimed by the plaintiff?
Briefly stated, a suit was filed by the plaintiff for declaration against the defendant and the trial court vide his order dated 5.2.1997 granted the decree for declaration that after the death of Balkishan Giri, the applicant is entitled to get his life insurance policy No. 26255655 and 26203754.
An appeal was preferred alongwith the delay application u/s 5 ga (2) and the copy of the decree was obtained on 6.3.1997. The learned Judge was of the opinion that no delay has been explained from 1.5.1997 to 31.5.1997 and the application u/s 5 ga (2) has been rejected on 17.9.1997.
In N. Balakrishnan v. M. Krishnamurthy 1998 S.C.F.B. and Rent Cases Pages 427, It has been held that law of limitation is found in public policy on ''the maxim of interest reipublicae up sit finis litium'' i.e. fal the general welfare, it has been held as under:
The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. 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".
Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time".
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.
In view of the judgment of the Apex Court, the appeal which was filed in June 1997 requires to be heard on merits.
So far as question of law No. 1 is concerned, the appeal deserves to be allowed. While admitting the appeal this Court has observed that there was a delay of 18 days in filing the appeal and, as such the appeal is allowed on the question of law No. 1. So far as question of law No. 2 is concerned, as the matter is sent back to the appellate court for deciding the same on merits, the same shall be considered at the time of the hearing of the suit itself.
In view of the aforesaid, second appeal is allowed. The matter is remanded to the District Judge for deciding the appeal on merits.