Surjeet Singh and Another vs Kishan Singh and Another

Rajesh Tandon, J.—Heard Sri P.M.N. Singh, Sr. Advocate assisted by Sri Sudhir Singh and Sri Jagdish Prasad, Counsel for the respondents.

By the present appeal, the appellants have challenged the order dated 22nd January, 2003, by which, their application under Order IX, Rule 13 of the CPC alongwith application u/s 5 of Limitation Act has been rejected.

Briefly, stated, the facts leading to the present appeal are that the application was filed for the custody of the female child. The case was decided ex-parte. On 2nd February, 2002.

The appellants have filed an application of recalling of the said order stating therein that no summons were ever received by the applicants, who are the grand-father and grand-mother and without hearing the applicants the ex-parte order was passed on 2nd February, 2002. The application under Order IX, Rule 13 was filed on 5th August, 2002. The application was rejected by the then District Judge on 2nd February, 2002 on the ground that the application has been filed beyond the period of limitation.

Without entering into the merits of the controversy with regard to the legality of the order dated 2nd February, 2002, both the parties have agreed that let the matter be decided on merits after hearing both the parties in view of the law laid down by the apex Court in N. Balakrishnan Vs. M. Krishnamurthy, . The same is quoted below:-

"Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The 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 rights 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. While condoning the delay, the Court should not forgot 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 of his loss."

The Apex Court in the case of Ram Nath Sao @ Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors., 2002 Supreme Court and Full Bench Rent Cases, Page 440 has held as under:-

"The expression ''sufficient'' cause'' within the meaning of Section 5 of the Limitation Act, 1963 (hereinafter referred to as the ''Act''), Order XXII, Rule 9 of the CPC (hereinafter referred to as ''the Code'') as well as similar other provisions and the ambit of exercise of powers thereunder have been subject matter of consideration before this Court on numerous occasions. In the case of the The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, , while considering scope of the expression'' sufficient cause'' within the meaning of Section 5 of the Act, this Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party."

While considering the application u/s 5 of the Limitation Act, there should be justice oriented approach as held by the Apex Court in M.S. Grewal and Another Vs. Deep Chand Sood and Others, , which is quoted as under:-

"Law Courts will lose their efficacy if they can not possibly respond to the need of the society-technicalities there might be many but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweight the course of justice."

Consequently, in the interest of both the parties, the matter is sent back to the Court below for deciding it on merits within a period of four months from the filing of the certified copy of the order.

Writ Petition is allowed. No order as to costs.