Manu Ram and Others vs Mukh Ram

Rajesh Balia, J.—Heard learned Counsel for the parties u/s 5 of the Limitation Act for the purposes of entertaining cross-objection. The cross-objection is delayed by 25 days. It is stated in the affidavit that the respondent was served with the notice in the month of Feb. 1993 for the next date 12.4.93. On 12.4.93 he came to Jodhpur and engaged a counsel and Vakalatnama was filed on that very date. The file of the trial court was not with the respondent while discussing the matter with the counsel, the counsel advised that as he has already paid Rs. 63,000/-. The Court should not have directed for again payment of the amount to the appellant and for that reason counsel advised to file cross-objection to challenge the finding on issue No. 1. On such advice on the very same day he went to the Suratgarh to collect the judgment and file from his local counsel and came to Jodhpur on 15.4.93 and the cross-objection was prepared and filed on 17.4.93. The plea of ignorance of law about the limitation with effect from the date of service of the summon was also taken. The application is supported by an affidavit of the respondent. No reply has been filed.

Learned Counsel for the respondent has vehemently argued that ignorance of law is no excuse and does not furnish any ground for condoning any delay. He place reliance on hukum Singh and Ors. v. Bhanwar Singh and Ors. ILR 1954 Raj. 351 , Chittarmal Vs. Sheo Narain and Others, and Nanda and Ors. v. Lachman and Ors. 1982 M P 8. On the other hand learned Counsel for the respondent urged that there is no principle in law which gives rise to a presumption that everybody knows every law. For this proposition he relies on Ms. Motilal Padampat Sugar Mills Co. Ltd. v. Uttar Pradesh and Ors. 1979 S C 621. As a corolary he anyuest follows that if there is no presumption that everybody knows the law, there cannot be a strait jacket rule that ignorance of law does not furnish an excuse. He also relies on Ram Sumiran and Ors. v. D.D.C. and Ors. 1985 SC 606 and a decision of this Court in Bhanwar Lal and Another Vs. Late Madan Lal and Another, wherein the Courts have condoned the delay in making an application by taking note of the plea about the ignorance of law when there is no presumption that everybody knows every law. In given circumstances, it may furnish sufficient cause for condoning delay in terms of Section 5 of Limitation Act.

Leaving aside the scope and ambit of application of the principle ingrained in the maxim ignorance of law does not excuse'', in the facts and circumstances of the present cases as noted above, in my opinion the delay in filing cross-objection deserves to be condoned, in view of the principles enunciated in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, wherein their Lordships had laid-down guidelines to be kept in view while considering the application for condoning the delay in filling appeals:

The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percelated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal date.

(2) 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 condened the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) "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.

(4) 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 ho presumption that delay is occasioned deliberately, or an account of culpable negligence or on account of malafides. 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 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Viewed in the light of the principles enunciated above and the unrebuttcd facts of the present case that the respondent is coming from a rural area, he appeared on the first date of hearing and lodged his ''Vakalatnama'' and when advised by his counsel brought these file from the local counsel in the district and lodged cross-objection within 5 days, in the circumstances, it cannot be presumed that delay was occasioned deliberately or on account of capable negligence or on account of malafides. In these circumstances, the interest of substantial justice should give way to the technical considerations by permitting the litigants to have their say in the matter particularly when the appeal is pending and whole subject matter is before this Court for review.

I accordingly allow the application u/s 5 of the Limitation Act and condone the delay in filing the cross-objection by the respondent and the same may be treated to have been filed in time.

This calls for consideration, the second objection raised by the office that court fee paid on cross-objection is not sufficient as it has been filed on the court lee stamp of Rs. 10/- only. In reply to the office objection it was stated that the respondent has challenged only the finding on issue No. l and as there is no challenge to decree a fixed court fee of Rs. l0/- has been paid.

Having considered the prayer in cross-objection I am of the opinion that the office objection is valid and the contention of the learned Counsel for the respondent is not well-founded.

The respondent-plaintiff has filed a suit for specific performance of contract. The case of the plaintiff-respondent was that he had paid Rs. 63,000/- as part payment of consideration of the agreement to sell the land in question to the appellant-defendant and has spent Rs. 14,000/- on behalf of the defendants-appellant and has thus paid Rs. 77,000/- as complete consideration of the agreement of which the specific performance was sought. Issue No. l was to the effect whether the plaintiff has paid Rs. 63,000/- to the defendant as earnest and part payment of price and issue No. 5 relating to the payment on behalf of defendant. Issue No. l was decided against plaintiff and issue No. 5 was abandoned by him. Consequently decree was passed in the following terms:

1- oknh izfroknh x.k dks cspku dh jkf''k :i;s 77000@& vkt ls nks ekg dh vof/k es vnk djs A

2- mijksDruqlkj oknh }kjk jkf''k izfroknhx.k dks vnk djus ;k U;k;ky; es tek djkus ij izfroknhx.k oknh ds gd es cs;ukek fu"ikfnr dj iathd`r djkokos A

3- izfroknhx.k }kjk oknh ds gd es cS;ukek iathd`r ugh djkus dh lwjr es oknh dks U;k;ky; ds ek/;e ls cS;ukek iathd`r djokus dk vf/kdkjh gksxk A

Obviously Clause 1 of the decree is a result of decision on issue No. l and 5 being against the plaintiff. The plaintiff is seeking reversal of Issue No. 1 which is necessarily to result in modification of the decree and that is also prayer in the cross-objection that by reversing the finding on issue No. 1, the decree may be modified by this Court. Thus, this is not a cross-objection merely against the finding recorded against the plaintiff for supporting the existing decree but against the part of decree itself. In that view of the matter the respondent is liable to pay court-fee on the valuation of the relief claimed through this cross-objection. It is incorrect for the respondent to contend that valuation on the finding on the issue No. 1 cannot be assessed.

In view thereof the objection of the office in this regard is sustained and the respondent is directed to disclose the valuation of cross-objection and pay the deficient court fee of such valuation within 3 weeks from today.