1. Challenge in this petition preferred under Article 227 of the Constitution of India is to the order of learned Principal Civil JudgeSavarkundla denying the request of condonation of delay in Regular Civil Suit No. 104 of 1993 in the following factual background.
2. The original plaintiff Shri Ramniklal Bhailal Parekh as the trustee of Girdharvav Trust (Registered ) instituted the Regular Civil Suit No. 104/1993 against the present respondent (original defendant ) in respect of the suit land allegedly gifted to the respondent by late Shri Ramniklal Parekh. On demise of Shri Ramniklal Parekh who died on 2nd July 2010, the present petitioner on the ground of ignorance of pendency of such litigation in the above referred suit did not file any application for impleading himself as the party plaintiff in the capacity of the trustee. He moved an application for joining himself as the trustee of the trust on 29th July 2009, nearly after eight years of demise of original plaintiff trust.
3. The Court after hearing both the sides rejected the application which is challenged on the ground of being improper, illegal and unjust and being contrary to the statutory provisions on the record.
4. Learned advocate Mr. P.R Abichandani appearing for the petitioner urged that the Court requires to be liberal in its approach in condoning delay if there is sufficient cause made out for setting aside the abatement of the suit. Considering the rights of the parties to set substantive justice the Court requires to approach the issue with the liberal interpretation balancing respective rights of the parties.
5. As against that the learned advocate for the respondent Mr. Gaurav Chudasma urged that there is a prerequisite of allowing any application that truthful version is brought on the record. The present applicant was in know of such disputes in respect of the land from the year 2005 from the proceeding before the Charitable Commissioner being No. 174 of 2001. Rejection is therefore absolutely proper and requires no interference. He urged that the scope of Article 227 of the Constitution of India would not permit this Court in exercise of supervisory jurisdiction in matter like the present one. From the rival submissions and record, it can be noted that the suit has abated as the sole trustee of the trust died and nobody came forward to implead itself as the plaintiff. Nearly after 8 years of such abatement, application is filed by the petitioner herein.
6. Section 5 of the Limitation Act permits the condonation of delay is based on the public policy. The ratio behind the law of limitation and the scope of discretion of the Court as also the manner of exercise of such powers of condonation are in detail described in the decision of Oriental Aroma Chemical Industries Limited Vs Gujarat Industrial Development Corporation and Anr reported in (2010) 5 SCC459. In the words of the Supreme Court :
14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
15. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107 : (AIR 1987 SC 1353), N.
Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 : (AIR 1998 SC 3222 : 1998 AIR SCW 3139) and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106 : (AIR 2001 SC 2582 : 2001 AIR SCW 2809).
16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142 : (AIR 1988 SC 897), State of Haryana v. Chandra Mani (1996) 3 SCC 132 : (AIR 1996 SC 1623 : 1996 AIR SCW1672), State of U.P. v.
Harish Chandra (1996) 9 SCC 309 : (AIR 1996 SC 2173 : 1996 AIR SCW 2785), State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635 : (AIR 1996 SC 3500 : 1996 AIR SCW 3507), State of Nagaland v. Lipok Ao (2005) 3 SCC 752 : (AIR 2005 SC 2191 : 2005 AIR SCW1748), and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582 : (AIR 2009 SC (Supp) 695 :
2008 AIR SCW 5692).
7. In yet another decision rendered in the case of Balvant Singh (Dead) Vs. Jagdish Singh and Ors reported in (2010) 9SCC685. While interpreting Section 5 of the Limitation Act as also the provision of Order 22 Rule 9(2) and (3) of the Code of Civil Procedure Apex Court held that though there is a requirement of liberal interpretation and balancing of rights of parties. However, when concept of sufficient cause has to receive liberal construction, the same must squarely fall within concept of reasonable time and proper conduct of the party concerned. It is also held that there is no straitjacket formula uniformly applicable to all cases. It is for the Court concerned to examine when the cause is sufficient and whether the delay could have been avoided by the party by exercise of due care and attention. In the words of Supreme Court it is held as under :
32. 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.
33. Furthermore, it is also a wellsettled 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.
34. 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].
35. 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.
36. 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].
37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (AIR 2009 SC (Supp) 886 : 2008 AIR SCW 6025) (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 under Section 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 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 (AIR 2009 SC 2907 : 2009 AIR SCW 4640) (supra).
38. 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 equibenches 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 would not be out of place to make a mention of the decision rendered N. Balakrishnan V. M. Krishnamurthy reported in [(1998) 7SCC 123] where Apex Court has permitted condonation of delay by liberally construing provision and holding that in absence of depicting malafide or a deliberate dilation tactic court should ordinarily condone the delay :
“The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The timelimit fixed for approaching the Court in different situations is not because on the expiry of such time, a bad cause would transform into a good cause. 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 repaid the damage cause 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. 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.
Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes, delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. 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. A court knows that refusal to condone the delay would result in approaching the court is always deliberate. The words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”
8. One of the main contentions raised against this petition is that in the proceedings before the Charity Commissioner being 174/2001, this petitioner preferred to set his name registered as the trustee and thus was aware of the proceedings. Nowhere it emerges that such contest would attribute knowledge to the petitioner herein of the pending suit.
9. Injunction application was decided in favour of the deceased trustee and that was challenged in appeal by respondent. Appeal was transferred due to bifurcation of district and eventually was dismissed for default, thus confirming order of trial court by default.
10. When record and proceedings were sent back to the trial court, petitioner is said to have received information through its advocate and thus, the application of condonation and of setting aside abatement after 8 years.
There is no malafide at all for such delay nor any delay tactic. Records and proceeding of suit were not before the trial court on account of developments mentioned hereinabove and thus pendency of suit is not an account of this petitioner. Thus, delay when sufficiently explained mere length must not deter the court from being liberal in a right cause as ultimately sufficiency of cause is vital as also the need for adjudicating substantive rights of the parties. This can be said to be the cause for advancing liberal interpretation adopting pragmatic approach. Petition resultantly is allowed, setting aside and quashing the order impugned of the trial court dated 4th December 2010. Petition stands disposed of in the above terms.
(Ms. Sonia Gokani,J.) mary//