Smt. Senu vs Suresh Sharma and Others

Dev Darshan Sud, J.—This application has been preferred by the applicant-Appellant u/s 5 of the Limitation Act praying for condonation of delay of one year and ten months in instituting the present petition.

The ground pleaded is that the Appellant is an illiterate and poor lady and she could not understand as to what order has been passed by the learned Tribunal. She wanted to institute the appeal, but was not advised by her advocate to do so. She thereafter went to the Court alongwith her neighbour and applied for a copy of the judgment on 24.4.2010 which was received by her on 25.5.2010. She did not have enough money to come at Shimla. The application then proceeds:

The applicant came to know about the fact that an impugned order has been passed on the lower side by the Ld. Tribunal by assessing the compensation when she visited Shimla to attend and see her relative admitted in IGMC and met with the counsel in his office and shown the copy of the award passed by the Ld. Tribunal below, on 28.7.2010. The applicant was never advised by her counsel for file appeal for enhancement at Karsog and Mandi. The applicant went to her village and thereafter visited the office of her counsel at Karsog on 30th July, 2010 and taken the file. The applicant thereafter visited the office of her counsel at Shimla after arranging for the money on 6.8.2010 and instructed her counsel to prepare the appeal, hence the present application alongwith the appeal

This is, in a nutshell, the case pleaded by her for condonation of delay.

When considered in its totality, illiteracy, poverty and legal advice by the counsel are three grounds pleaded by the applicant for condonation of delay.

In Balwant Singh (Dead) Vs. Jagdish Singh and Others, the Supreme Court has laid down the law as to what should be sufficient cause for condonation of delay. The Court holds:

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 the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.

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.

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 does not reflect ''sufficient cause'' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997]

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.

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]

We feel that it would be useful to make a reference to the judgment of this 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 u/s 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 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)

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 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.

It is undisputed that the Appellant herein was represented by counsel before the learned Motor Accident Claims Tribunal which is evident from the copy of the judgment filed.

The law is now well settled that it is not the length of time or delay which is conclusive in considering as to whether delay is to be condoned or not. It is the substantive reasons advanced which would be important. From the pleading in the application what I find is that the Petitioner is a resident of an interior area in Himachal Pradesh and does not have access to high quality legal services. She also pleads ignorance and poverty as factor and I have no reason to disbelieve these submissions which have been made on affidavit. Though the delay, as submitted by the learned Counsel for the Respondents, is of one year and ten months, but that, as the Court holds, is not by itself sufficient for the exercise of discretion by this Court. After all what can a helpless lady, residing in a village, totally unaware about her rights and living in condition of poverty do? These factors by themselves should be sufficient to point out towards bonafide and the reasonable explanation of the delay which is being occasioned in filing this petition.

In these circumstances, taking into consideration the ratio in Balwant Singh,s case supra, the application for condonation is allowed.

FAO No.285 of 2010.

Admit.