Shri Jeet Ram vs Shri Tek Singh through his Lrs. and Others

Dev Darshan Sud, J.—Both these appeals are being disposed of by a common judgment as common set of facts are involved and common questions of law are to be determined. Learned District Judge, disposed of Civil Appeal No. 38-S/13 of 2008/06, title Jeet Ram versus Tek Singh preferred by the present appellant against the judgment of the learned Civil Judge (Jr. Division), Court No. 4, Shimla passed in civil Suit No. 26/1 of 1999/95, whereby the application for restoration of the suit instituted by Jeet Ram was dismissed on 22.2.2006, Civil Appeal No. 37-S/13 of 2008/06, title Jeet Ram versus Tek Singh was instituted against the judgment and decree passed by learned Civil Judge (Junior Division), Court No. 4, Shimla on 4.5.2006 in Counter Claim No. 76/1 of 2001/95 in Civil Suit No. 26/1 of 1999/95 allowing a part of the counter claim instituted by respondent Tek Singh, challenging its legality and ultimate order passed, Cross objections No. 77-S/13 of 09/07 were instituted by Tek Singh before the learned District Judge under the provisions of Order 41, Rule 22 of the CPC ( CPC for short) against the judgment and decree dated 4.5.2006 in the same civil suit as instituted by the appellant/plaintiff Jeet Ram, wherein a part of the counter claim was allowed. The prayer of Tek Singh was for grant of the entire claim put forth in the counter claim. Two applications u/s 5 of the Limitation Act which were registered as Civil Appeal No. 42-S/6 of 2008/07, titled Jeet Ram versus Tek Singh and Civil Appeal No. 4-S/6 of 2009/06, title Jeet Ram versus Tek Singh were instituted respectively by plaintiff/appellant and defendant/cross-objector praying that the delay in instituting respective appeals and claims be condoned in the interest of justice. A number of grounds were taken both by the appellant and the respondent herein in support of their respective submissions that the delay in instituting the proceedings in appeal/counter claim before the learned Appellate Court was bona fide and required to be condoned and thereafter the case be proceeded with in accordance with law.

The learned District Judge dismissed both the appeal as also the cross objections after dismissing both the applications instituted u/s 5 of the Limitation Act. I find from the judgment that the learned District Judge has been extremely terse in the order and has not given any consideration to the applications instituted both by the appellant and the respondent herein in dismissing their respective applications and no consideration was given on merits. So far as the law governing condonation of delay in instituting limitation applications is concerned, the Supreme Court in Balwant Singh (Dead) Vs. Jagdish Singh and Others, has considered the law successively laying down the principles in detail and holding that it is not length of delay but the quality of the delay which offered. Without adverting to the entire case law as discussed in Balwant Singh''s case (supra), the Supreme Court holds:

We feel that it would be useful to make reference to the judgment of this Court in Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs. and Others, 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 CPCF along with an application u/s 5 of Limitation Act for condonation of delay infilling the application for brining the legal representatives on record. In SCC para 13 of the judgment, the Court held as under: (SCC pp.329-30):

(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 decide the matter on merits, rather than terminate 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 the 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 refilling the appeal after rectification of defects.

(v) Want of ''diligence'' on ''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 waits to call or information from his counsel about the listing of the appeal.

(emphasis in original)

We may also notice here that this judgment had been followed with approval by an equi-Bench of this Court Katari Suryanarayana and Others Vs. Koppisetti Subba Rao and Others,

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 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 be 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 to 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.

(pp. 699-700)

Subsequently, these principles have been re-affirmed in Office of The Chief Post Master General and Others Vs. Living Media India Ltd. and Another,

It was these principles which are required to be applied by the learned Appellate Court considering the respective applications u/s 5 of the Limitation Act instituted by both the parties.

I need not re-emphasize that in an application u/s 5 of the Limitation Act, the delay is condoned either on the pleadings which if admitted do not call for evidence on the grounds urged or on determination of the respective merits urged before the learned Court, for which purpose, if the parties so desire (usually this course followed in contested cases) the parties be given an opportunity to lead evidence to establish that the delay occasioned was in fact bona fide.

All that I need say about the judgment of the learned District Judge disposing of as many as five cases namely two appeals preferred by the appellant herein, one cross-objections preferred by the respondent and two applications preferred u/s 5 of the Limitation Act by both the parties is extremely terse and bereft of reasoning and not at all touching these principles of law which requires consideration.

Learned counsel appearing for the respondents submits that no question of law much less a substantial question of law arises for determination in these appeals. I need peruse this submission any further. The sole question which arises for determination of this Court is whether the learned District Judge was right in dismissing the applications filed both by the appellant and respondent without considering the merits of each application and whether the learned District Judge should and ought to have granted an opportunity to the parties to lead evidence? Needless to say that the answer to this question is in the positive in favour of both the appellant and the respondent. The appellate Court being the first Court of appeal was required to consider entire case of the parties in detail on the material on record/submissions made. Both the appeals are accordingly allowed. Order passed by the learned District is quashed and set aside and all the five appeals are restored to the original number with this direction that the learned District Judge will first take up the applications instituted by the appellant as also respondent herein u/s 5 of the Limitation Act, proceed to adjudicate these applications in accordance with law and then to consider the respective cases of the parties on merits, if the court comes to the conclusive that the delay was bona fide. The parties shall appear before the learned District Judge, Shimla on 30th October, 2012. No order as to the costs. Records if received be sent back forthwith. All pending applications also stand disposed of.