1. Heard learned counsel for the parties on disposal of delay condonation application no. 341881 of 2014 in moving restoration application no. 341883 of 2014, and perused the records. The restoration application and affidavit of applicat were controverted by counter-affidavit, against whic rejoinder affidavit was filed.
2. The non-admitted Civil appeal no. 923 of 2003, Sukumar Mitra v. Smt. Kavita Gunnani Smt. Kavita Gunnani was dismissed on 04.01.2005. its restoration application was moved by applicant-appellant on 20.11.2014.
3. The grounds of delay condonation are mentioned in paragraphs to 5 of affidavit of appellant Sukumar Mitra, which are that the appellant came to Allahabad on 14.9.2014 and inquired about his case to his counsel who directed his clerk to make enquiry about the case in the concerned office of this Court. Then the clerk of the counsel enquired the above case from computerized section of the Court and found that the case was dismissed on 4.1.2005. then the counsel for the appellant has perused his register of year 2005 and found that the above noted case was not marked so he failed to appear and case was dismissed. Thereafter the clerk of the counsel inquired about the original record of the appeal from the section concerned and restoration application was moved.
4. A perusal of the facts of affidavit reveals that the applicant-appellant has no personal knowledge of the grounds of absence of his counsel in the court on the date fixed, that is on 4.1.2005. his knowledge is based on information received from the information received from other persons, that is clerk of the counsel and counsel himself. But the name of these persons were not revealed in application or affidavit. The ground of alleged hearsay knowledge from the persons, whose names are not revealed, deliberately without any reason or explanation, is not found sufficient. No affidavit has been filed on behalf of clerk or other person who may have direct knowledge of the facts, which are mentioned in affidavit of applicant-appellant.
5. Learned counsel for the appellant contended that delay in filing this restoration application was not deliberate and intentionally so it should be condoned.
6. There submissions were refuted by counsel for the O.P.-respondent who contended that respondent is pursuing this matter since year 1986, and applicant-appellant had been in habit of delaying the matter. He submitted that even first appeal was also filed beyond period of limitation. He further contended that applicant-appellant had knowledge of dismissal of this appeal fromvery beginning. He had knowledge of execution proceedings being carried out in lower court, the notice of which was served on him in year 2004, but he had not deliberately mentioned this fact in restoration or delay condonation application and taken this ground of service of notice of execution case as source of his knowledge. His restoration application or delay condonation application are without any sufficient reasons and should be dismissed.
7. If the facts mentioned in affidavit of applicant is taken as correct then in the non-admitted second appeal was dismissed on 04.01.2005, and appellant had not given a thought to as to what had happened to it, for about 10 years. The reason of this apathy was not explained. The persons having personal knowledge of the relevant facts have not file any affidavit, thus best evidence was suppressed by applicant-appellant. This averment made in counter-affidavit is not specifically denied that since year 2004 applicant-judgment debtor was served with notice in execution case but he had not filed objection. Thus it appears that he had deliberately or purposely permitted the execution proceedings being carried out, and not tried to get his second appeal decided, which was not even admitted.
8. The grounds for delay condonataion are mentioned in paragraphs 1 to 5 of affidavit of applicant-appellant as above, which makes it clear that the non filing of the restoration application within period of limitation was wilful and deliberate act of appellant, and contentions of learned counsel for the appellant in this regard are found incorrect and unacceptable.
9. In Popat and Kotech Property v. State Bank of India Staff Association(2005) 7 SCC 510, Hon'ble Apex Court had held as under:-
"7. The period of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken writ diligence and to prevent oppression. The statute i.e. the Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute bar discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. - - -
9. 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 ut sit finis litium (it is general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. - - -"
10. In Damodaran Pillai & others v. South Indian Bank Ltd., AIR 2005 S.C. 3460, Hon'ble Apex Court had held as under:-
"14. It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.
15. It is well settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to."
"20. The principles underlying the provisions prescribing limitation are based on public policy aiming at justice, the principles of repose and peace and intended to induce claimants to be prompt in claiming relief.
21. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation."
11. This legal position is explicitly clear that the principles underlying provisions of limitation are based on public policy aiming that justice should be furnished to all the parties and hardship or injustice may be relevant consideration in applying the discretion for condoning the delay. But such hardship of both the parties should be considered. In condoning the delay beyond period of limitation provided by the statute there must be cogent and satisfactory reasons. Such reasons are lacking in present matter.
12. The application for condonation of delay has been moved by appellant under Section 5 of Limitation Act, 1963, which reads as under:
"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
13. There is period prescribed for initiation of every legal proceedings in Limitation Act, and such period may be extended in accordance with mandatory provisions of the Act. The said provisions of Section-5 make it explicitly clear and mandatory that an application for extension of prescribed period of limitation may be allowed only if the appellant or applicant satisfies the Courts that he had sufficient cause for not preferring the appeal or making the application within such period. As discussed above, for deciding the matter of limitation not only the case of applicant should be considered, but the principles underlying the provisions the Act, which are based on public policy alongwith hardship and injustice to other party should also be considered. In the present matter, every consideration leads to inference against applicant-appellant. It has also been proved that applicant-appellant had failed to satisfy this Court that he had sufficient cause for filing the second appeal; therefore under the provisions of Section-5 of Limitation Act his application for condonation of delay in filing second appeal should not be allowed. In absence of any reasonable or sufficient ground, the Delay Condonation Application is liable to be rejected.
14. In view of the above, the grounds for condonation of delay of about ten years in filing restoration application for non-admitted appeal are not sufficient. Therefore, the application for condonation of delay in filing restoration application on behalf of appellant-applicant is hereby dismissed.
Order Date: 20.04.2016 SR Court No. - 19 Civil Misc. Restoration Application No:- 341883 of 2014 In Case :- SECOND APPEAL No. - 923 of 2003 Appellant :- Sukumar Mitra Respondent :- Smt. Kavita Gunnani Counsel for Appellant :- Satya Prakash Gupta Hon'ble Pramod Kumar Srivastava, J.
The delay condonation application in filing restoration application has already been dismissed.
In view of the facts and reasons stated in the order on delay condonation application, this restoration application is accordingly dismissed.
Order Date: 20.04.2016 SR