Court No. - 34
Civil Misc. Delay Condonation Application No.100258 of 2016 IN Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 487 of 2016 Appellant :- Smt. Bilkis And 3 Ors.
Respondent :- Abdul Vajid And 2 Others Counsel for Appellant :- Anil Kumar,Anil Kumar Aditya Counsel for Respondent :- Rahul Sahai
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Heard learned counsel for applicant-appellants and perused the record.
2. This appeal under Section 173 of Motor Vehicles Act, 1988 has been filed against the award dated 02.06.2012 after expiry of limitation with a delay of 3 years and 201 days. The explanation furnished in affidavit accompanying delay condonation application filed under Section 5 of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") state that documents were handed over by the deponent Afsana, who is doing Pairvi of the case, to one person and thereafter she left and came back after three years. The factual averments contained in paras 3 to 8 read as under :
"3. That immediately passing the judgment dated 02.06.2012, the appellants have applied for the certified copy of the impugned order dated 02.06.2012 and received the certified copy of the impugned judgment on the second week and the deponent has came to Allahabad on 20.06.2012 and meet her counsel Sri Anil Kumar Dhaka.
4. That after reaching the Hon'ble Court when the deponent asked the address of her counsel Sri Anil Kumar Dhaka, then a person who claims to be clerk of her counsel Sri Anil Kumar told that Mr. Anil Kumar Dhaka is out of Station and he has gone Supreme Court for pairavi of case, therefore, whatever work, she may give him and will do necessary.
5. That the deponent had told him above filing the appeal, she took certified copy, all the necessary documents and ensured they will file appeal and told the deponent to contact to the counsel about after three years, about the progress of appeal.
6. That the deponent again came to Allahabad on 17.02.2016 for inquired of the progress of the aforesaid appeal and reached in Chamber No.118, High Court, Allahabad of her counsel Mr. Anil Kumar Dhaka and met him and after meeting when she inquired above progress of the appeal, then the counsel has replied that no such appeal is pending with him, and he has not appointed any clerk and any person has ever not given any document for filing the said appeal and counsel advised for filing appeal and without unnecessary delay for purpose of filing the appeal.
7. That thereafter, the counsel for the appellant Mr. Dhaka made inquiry for the computer enquiry department of the Hon'ble Court High Court, but it was replied by the clerk that no such appeal has been filed, thereafter, the deponent came to know that she has taught by some person immediately, thereafter, the deponent returned back to Ghaziabad, she has again applied certified copy of the impugned judgment at Gautam Buddha Nagar, and handed over certified copy of the impugned judgment on 10.03.2016. Thereafter, the deponent went to back her home and got signature of the appellants and arranged necessary expenses for filing the appeal and again came to Allahabad on 19.03.2016 and the counsel without unnecessary delay prepared the appeal.
8. That from the said facts and reasons at stated above, it is clear there is not unnecessary delay or latches on the part of appellants and she is sincerely contesting her case, the delay made in filing appeal is due to reason disclosed above, thereafter, it is necessary in the interest of justice to condone the delay in filing the present F.A.F.O. and entertain the appeal and passed the order on merit of the case.”
3. The explanation is, ex facie, perfunctory, vague and does not inspire any confidence. No material has been placed on record to satisfy the aforesaid facts. In our view, there is no explanation what to say of satisfactory explanation as to why the matter was not taken with due earnest and reasonable expediency.
4. The expression "sufficient cause" in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to parties, seeking condonation of delay. In Collector, Land Acquisition Vs. Katiji, 1987(2) SCC 107, the Court said, that, when substantial justice and technical considerations are taken 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. The Court further said 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.
5. In P.K. Ramachandran Vs. State of Kerala, AIR 1998 SC 2276 the Court said:
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."
6. The Rules of limitation are not meant to destroy rights of parties. They virtually take away the remedy. They are meant with the objective that parties should not resort to dilatory tactics and sleep over their rights. They must seek remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The statute relating to limitation determines a life span for such legal remedy for redress of the legal injury, one has suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would come 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. The statute providing limitation is 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). It is for this reason that when an action becomes barred by time, the Court should be slow to ignore delay for the reason that once limitation expires, other party matures his rights on the subject with attainment of finality. Though it cannot be doubted that refusal to condone delay would result in foreclosing the suiter from putting forth his cause but simultaneously the party on the other hand is also entitled to sit and feel carefree after a particular length of time, getting relieved from persistent and continued litigation.
7. There is no presumption that delay in approaching the court is always deliberate. No person gains from deliberate delaying a matter by not resorting to take appropriate legal remedy within time but then the words "sufficient cause" show that delay, if any, occurred, should not be deliberate, negligent and due to casual approach of concerned litigant, but, it should be bona fide, and, for the reasons beyond his control, and, in any case should not lack bona fide. If the explanation does not smack of lack of bona fide, the Court should show due consideration to the suiter, but, when there is apparent casual approach on the part of suiter, the approach of Court is also bound to change. Lapse on the part of litigant in approaching Court within time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, would add to his negligence, and would be relevant factor going against him.
8. We need not to burden this judgment with a catena of decisions explaining and laying down as to what should be the approach of Court on construing "sufficient cause" under Section 5 of Act, 1963 and it would be suffice to refer a very few of them besides those already referred.
9. In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 a three Judge Bench of the Court said, that, unless want of bona fide of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
10. The Privy Council in Brij Indar Singh Vs. Kanshi Ram ILR (1918) 45 Cal 94 observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. This principle still holds good inasmuch as the aforesaid decision of Privy Council as repeatedly been referred to, and, recently in State of Nagaland Vs. Lipok AO and others, AIR 2005 SC 2191.
11. In Vedabai @ Vaijayanatabai Baburao Vs. Shantaram Baburao Patil and others, JT 2001(5) SC 608 the Court said that under Section 5 of Act, 1963 it should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.
12. In Pundlik Jalam Patil (dead) by LRS. Vs. Executive Engineer, Jalgaon Medium Project and Anr. (2008) 17 SCC 448, in para 17 of the judgment, the Court said :
"...The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and state claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights."
13. In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, in para 18 of the judgment, the Court said as under:
"What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."
14. In our view, the kind of explanation rendered herein does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation. On the contrary, we find that here is a case which shows a complete careless and reckless long delay on the part of applicant which has remain virtually unexplained at all. Therefore, we do not find any reason to exercise our judicial discretion exercising judiciously so as to justify condonation of delay in the present case.
15. In the result, the application deserves to be rejected.
16. We order accordingly.
Order Date :- 27.2.2018 KA
Court No. - 34
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 487 of 2016 Appellant :- Smt. Bilkis And 3 Ors.
Respondent :- Abdul Vajid And 2 Others Counsel for Appellant :- Anil Kumar,Anil Kumar Aditya Counsel for Respondent :- Rahul Sahai
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
Since this appeal has been filed beyond time and application seeking condonation of delay has been rejected vide order of date, this appeal stands dismissed being barred by limitation.
Order Date :- 27.2.2018 KA