Monday 4 May 2015

When court should not condone delay?



Limitation - Condonation of delay - Deliberate delay - Section 5 of Limitation Act, 1963 - First Appellate Court had rejected Application filed for condoning delay by Appellants/Applicants on ground that there was no evidence to show that from date of receipt of certified copies of decree Applicants was not keeping good health, which made and there was negligence on part of Applicants - Hence, this Appeal - Whether finding recorded by first appellate Court in deciding Application for condonation of delay to prefer first Appeal that Appellants had not show sufficient cause for condoning delay was not based upon facts before it and was perverse - Held, there was no sufficient and reasonable cause showed for not filing of Appeal within period of limitation - Some Appellants had not gave any explanation absolutely as to why they did not take any steps for filing of Appeal against decree of trial Court - Appellants very well knew that their brother was alcoholic, was suffered from serious ailments of anemia and liver and therefore, could not have been counted on for filing of Appeal against decree of trial Court - Appellants were just sitting idle and had not show any bona fides on their part and therefore, benefit of discretionary relief under Section 5 of Act, could not be gave to them - Further already found that there had been negligence in present case and therefore, present case was not fit case for condoning delay by putting Appellants to condition of payment of costs to other side - Hence finding recorded by first Appellate Court against Appellants was indeed based on facts before it, thus order was confirmed 
"Where delay is seen to be deliberate or not for any bona fide reasons or where parties are negligent, dismissal of condonation of delay Application shall be allowed."



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.434 OF 2011
Smt. Varhyan wd/o. Narendra Singh 
Chhatwal 
...VERSUS...
   Smt. Kala wd/o. Narendra Singh Chhatwal,
     
CORAM :   S.B. SHUKRE, J.
  
DATE    :  29   OCTOBER, 2013
Citation: 2014(3)ABR135, 2014(6)BomCR603, 2014(2)MhLj61



This   appeal   is   directed   against   the   judgment 

delivered   on   26.7.2011   in   Misc.   Civil   Application   No.291   of 
2011 in First  Appeal that was sought  to be filed against the 
judgment, order and decree passed by the 7th Joint Civil Judge, 
Senior   Division,   Nagpur   on   10.6.2009   in   Special   Civil   Suit 
No.848   of   2003.     After   hearing   the   learned   counsel   for   the 
appellants   and   the   learned   counsel   for   the   respondents,   this 
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Court   admitted   the   appeal   on   a  substantial   question   of   law. 
under :­
The   substantial   question   of   law   involved   in   the   appeal   is   as 
“Whether   the   finding   recorded   by   the   first 
appellate Court in deciding the application for 
condonation of delay to prefer first appeal that 
the appellants have not shown sufficient cause 
for condoning the delay is not based upon the 
facts before it and is thus perverse ?
2.
Shri S.W. Sambre, learned counsel for the appellants 
has   submitted   that   the   first   appellate   Court,   in   rejecting   the 
application filed for condoning the delay that had occurred in 
filing   of   the   First   Appeal   proceeded   absolutely   on   wrong 
footing that the original defendant No.1/Smt. Varhyan wd/o. 
Narendra   Singh   Chhatwal   died   on   10.9.2010   and   that   there 
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was no evidence to show that from the date of receipt of the 
certified copies of the judgment and decree on 15.2.2010 till 
10.6.2010,  Smt. Varhyan wd/o. Narendra Singh Chhatwal was 
not   keeping   good   health,   which   made   the   learned   District 
Judge   find   that   there   was   a   negligence   on   the   part   of   the 
applicants.     The   learned   counsel   for   the   appellants   has 
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submitted   that   the   copy   of   the   death   certificate   of 
Smt. Varhyan was already produced before the first appellate 
Court and it clearly showed that she had died on 30th January, 
2005.  He also submitted that in fact,  Smt. Varhyan had died 
during   the   pendency   of   the   Civil   Suit   and   since   her   legal 
representatives   were   already   there   on   record,   her   name   was 
deleted from the array of the defendants.  He further submitted 
that   even   when   Misc.   Civil   Application   No.291   of   2011   was 
filed,   the   cause   title   clearly   indicated   this   fact   and   that   the 
names of  the applicants,  in all five, began with the name of 
Surjeet Singh Narendra Singh Chhatwal.   However, according 
to him, these facts present on record were completely missed 
by   the   learned   District   Judge   and   the   result   was   a   perverse 
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order against the present appellants.   He further submits that 
in   a   case   involving   questions   relating   to   title   and   right   to 
possession of an immovable property, Courts should not take 
any technical or pedantic approach and decide such disputes 
not on technicalities, but on merits of the matter and that this 
is   a   fit   case   wherein   opportunity   needs   to   be   given   to   the 
3.
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appellants to present their case on merit.
Shri   N.A.   Padhye,   learned   counsel   for   the 
respondents   submits   that   there   may   be   a  mistake   in   making 
reference   to    Smt.  Varhyan   wd/o.   Narendra   Singh  Chhatwal 
and particularly about her death on 10.9.2010 on the part of 
the first appellate Court.  But, he submits that this mistake was 
the   result   of   a  mistake   committed   by   the   applicants   in   their 
application   for   condonation   of   delay.     He   points   out   from 
paragraph   No.4   of   the   application   that   the   applicants   had 
clearly   mentioned   that   the   delay   was   mainly   on   account   of 
illness   of   the   applicant   No.1,   which   resulted   in   death   of 
applicant   No.1   on   10.9.2010.     He   further   submits   that   the 
impugned judgment would show that the first appellate Court 
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had   not   proceeded   merely   on   the   basis   that     Smt.   Varhyan 
wd/o. Narendra Singh Chhatwal did not take steps for filing of 
the   appeal   from   15.2.2010   till   her   death   on   10.9.2010, 
although it was on a misconception of fact, but had also found 
absolute negligence on the part of the rest of the applicants in 
taking diligent and prompt steps in filing of the First Appeal. 
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All these facts are clearly borne out from the reasons given by 
the first appellate Court in its impugned Judgment.  He further 
argued that the law does not and should not support a person 
who is  indolent.   The law relating to condonation of delay is 
meant for lending its supporting hand to diligent litigants and 
who,  for   some   reasons  beyond  their  control,  are   not  able   to 
knock at the doors of the law within stipulated period of time, 
so   submits   learned   counsel   for   respondents.     Therefore, 
according to him, this is not a case meriting any indulgence to 
the appellants.
4.
The impugned judgment dated 26th July, 2011 shows 
that   the  learned   counsel   for   the   appellants   is  right   when   he 
submits that the first appellate Court has assumed wrongly that 
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Smt.   Varhyan   Chhatwal   expired   on   10.9.2010   and   then 
wrongly noted that there was no evidence showing that during 
the period from 15.2.2010 till her death on 10.9.2010, she was 
ill   and  bedridden.    But,  this error,   as we   would  see  in  later 
parts of this judgment, has not gone to the root of the whole 
In this case, the judgment, order and decree sought 
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5.
case and has not rendered the impugned order perverse.
to   be   assailed   by   filing   the   First   Appeal   were   rendered   on 
10.6.2009.   It is the case of the appellants that they were not 
informed   of   passing   of   this   judgment   and   order   by   the   trial 
Court   and   they   acquired   knowledge   about   the   same   on   8th 
February, 2010 only when they were served with the notice of 
execution   of   the   said   judgment   and   decree.     The   appellants 
have   also   submitted   that   they   immediately   moved   an 
application  for  grant  of certified copies  of the judgment  and 
order   on   9th  February,   2010,   which   they   received   on   15th 
February,   2010.     According   to   the   appellants,   this   period 
starting from 11.6.2009 till receipt of the certified copies of the 
judgment   and   decree   on   15.2.2010   deserves   to   be   excluded 
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from  computation  of the limitation  period and the limitation 
should be held to have started from 15.2.2010.  The appellants 
have   also   submitted   that   the   application   for   condonation   of 
delay   was   filed   on   11.10.1010   and   the   delay   that   occurred 
especially between 15.2.2010 to 11.10.2010 has been properly 
explained   by   them.     So   far   as   the   period   starting   from 
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11.6.2009   and   ending   on   15.2.2010   is   concerned,   the 
explanation   given   by   the   appellants   that   they   were   not 
informed of the judgment and decree passed by the trial Court, 
although there is no affidavit filed on record of the concerned 
Advocate,   can   be   accepted   simply   by   relying   upon   the 
statement   of   the   appellants.     The   reason   for   this   is   that 
ordinarily, the appellants would not have sat idle if they had 
really come to know about passing of the judgment and decree 
against them immediately and they would have at least filed an 
application for grant of certified copies of the same, as they did 
on 9th  February, 2010.   But, the matter does not end here as 
the appeal with delay condonation application were not filed 
immediately   thereafter.     So,   the   further   questions   are:   What 
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the   appellants   did   after   the   certified   copies   of   the   judgment 
and  decree   were  delivered  to  them  on  15.2.2010?    Whether 
they   acted   thereafter   with   sufficient   promptitude   or   whether 
they   were   negligent   and   allowed   the   rights   acquired   by   the 
respondents to be consolidated and finalized.
In order to find out answers to the questions, let us 
6.
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turn again to the impugned order.   The first appellate Court in 
paragraph   No.13   has   mentioned,   though   wrongly   as   stated 
earlier, that  Smt. Varhyan expired on 10.9.2010 and assuming 
this fact to be true, the first appellate Court also proceeded to 
consider whether    Smt. Varhyan  was diligent  and prompt  in 
prosecuting   the   remedy   available   to   her   under   the   law   and 
further found that she was not so.   The first appellate Court 
found that no evidence was available showing that during the 
relevant period from 15.2.2010 till 10.9.2010,   Smt. Varhyan 
was not keeping good health.  In fact, her name was removed 
from the array of the defendants during the pendency of suit 
itself.  Besides, there was also available on record, as submitted 
by   learned   counsel   for   the   appellants,   her   death   certificate 
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indicating   that   she   had   expired   on   30th  January,   2005. 
Therefore, the finding recorded by the trial Court on this aspect 
of the case is not based upon the evidence available on record 
and has to be held as illegal.  However, as rightly submitted by 
learned counsel for the respondents, this does not seem to be 
the   only   reason   which   went   behind   recording   of   the   finding 
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that the appellants have not made out any sufficient cause for 
filing the appeal within the period of limitation.
It appears that the appellants were also not careful in 
7.
raising their contentions before the first appellate Court when 
they filed their application seeking condonation of delay.   In 
paragraph   No.4   of   this   application   bearing   Misc.   Civil 
Application No.291 of 2011, the applicants have stated that the 
applicant   No.1   died   on   10.9.2010   and   that   since   he   was 
consistently ill for a long period of time and ultimately died, 
the delay of about 354 days had occurred.   The cause title of 
this   application   discloses   that   Surjeet   Singh   s/o.   Narendra 
Singh Chhatwal was the applicant No.1 and there is no dispute, 
Grace  to God,  that  he  is  very  much alive  till  date.     Learned 
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counsel for the appellants has submitted that the applicants in 
fact   wanted   to   show   that   the   applicant   No.2,   who   has   been 
shown as deceased appellant No.2 (Surendrapal Singh) in the 
present   appeal,   had   expired   on   10.9.2010   after   a   prolonged 
illness  and this fact was clarified to the first  appellate  Court 
during   the   course   of   the   argument.     It   might   be   so   and   it 
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appears   that   the   first   appellate   Court   has   indeed   considered 
this argument when it found that said Surendrapal Singh was 
admitted to the hospital on 10.8.2010 and was discharged on 
2.9.2010.   But it also found that before his admission to the 
hospital, there was no reason for him to not take any steps in 
filing   the   First   Appeal.     Learned   counsel   for   the   appellants 
submits   that   even   before   his   admission   to   hospital   on 
10.8.2010, Surendrapal Singh, because of his prolonged illness, 
was not in a position to take steps necessary for filing of the 
appeal and this can be seen from the medical reports starting 
from 17.10.2002.  He submits that these reports together with 
the   discharge   card   vide   Exhibit­21/8   produced   before   first 
appellate   Court   would   show   that   Surendrapal   Singh   was   a 
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chronic   alcoholic,   suffering   from   severe   anemia   and   serious 
liver   disease,   which   ultimately   took   a   toll   on   his   life.     He, 
therefore,   submits   that   the   first   appellate   Court   has  wrongly 
found that Surendrapal Singh has not explained properly as to 
why   did   he   not   take   any  steps  for   filing   of   the   appeal   after 
This   much   of   argument   of   learned   counsel   for 
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8.
15.2.2010 till his admission to the hospital on 10.8.2010.  
appellants can also be accepted for the reason that the medical 
reports of the year 2002 would have to be considered together 
with   the   discharge   card   vide   Exhibit­21/8   which   expressly 
mentions   about   serious   ailments   suffered   by   Surendrapal 
Singh.     In   a   cumulative   manner,   these   documents   would   be 
sufficient   to   enable   any   one   to   infer   that   Surendrapal   Singh 
was   keeping   ill   health   generally   and,   therefore,   the   first 
appellate Court was not right in blaming the unexplained delay 
on   Surendrapal   Singh.     But,   the   inference   that   Surendrapal 
Singh generally had a fragile health, much due to his alcoholic 
tendencies, itself had a flip side to tell.  Surendrapal Singh was 
also a person who could not have been relied upon for taking 
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appropriate steps for filing of the appeal.   This fact was also 
known to rest of the appellants.  Therefore, one is surprised as 
to why the remaining appellants, inspite of very well knowing 
serious   ailments   and   alcoholic     proclivities   of   Surendrapal 
Singh, did not take any steps for filing of the First Appeal.  This 
is what has been pinpointed by the first appellate Court in the 
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subsequent   portion   of   the   paragraph   13   of   the   impugned 
judgment.     It   has   found   that   apart   from   the   illness   of 
Surendrapal Singh, there was no reason for other applicants, 
namely, Surjeet Singh, Kuldeep Singh, Smt. Harjeet Kaur and 
Smt.   Prabhjot   Kaur   for   not   filing   the   First   Appeal   within   a 
period of limitation.   For this reason, the first appellate Court 
found that there was no sufficient and reasonable cause shown 
for not filing of appeal within a period of limitation.   Having 
regard to facts of the case, I have no reason nor any adequate 
reason has been shown to me, to find any flaw in this finding. 
One can very well see that the appellants have not explained as 
to  what   the   other   appellants,   apart   from   Surendrapal   Singh, 
were doing after receiving the certified copies of the impugned 
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judgment and decree on 15.2.2010 till filing of the application 
for   condonation   of   delay   on   11.10.2010.     It   is   true   that   for 
some period of time, the appellants had been prosecuting First 
Appeal preferred before this Court, which was then returned to 
them for being presented to the appropriate forum.   The First 
Appeal was filed on 25.8.2010.  Even if this date is taken into 
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account for considering the argument that delay is in fact not 
so much as it looks to be, still, there is quite a long period in 
which   no   action   has   been   taken   by   appellants,   barring 
Surendrapal   Singh.     One   would   surely   see   that   appellants, 
apart   from   Surendrapal   Singh,   could   and  should   have   taken 
steps   for   filing   of   the   challenge   immediately   after   15.2.2010 
and if they had not done so, they ought to have given sufficient 
explanation   for   their   failure   to   do   so.     The   remaining 
appellants,   have   not   given   any   explanation   absolutely   as   to 
why they did not take any steps for filing of the appeal against 
the decree of the trial Court.  Therefore, I find substance in the 
argument of the learned counsel for the respondents that the 
appellants have not shown any sufficient cause in this case in 
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filing their challenge to the judgment and decree of the trial 
Court.  It is seen that these appellants very well knew that their 
brother   Surendrapal   Singh   was   an   alcoholic,   was   suffering 
from serious ailments of anemia and liver and, therefore, could 
not have been counted on for filing of an appeal against the 
judgment   and   decree   of   the   trial   Court.     Therefore,   it   was 
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expected of them to have taken prompt steps in the matter and 
avoid any negligence on their part.   It appears that they were 
just  sitting idle  and have not shown any   bona fides on their 
part and, therefore, the benefit of the discretionary relief under 
Section 5 of the Limitation Act, 1963 cannot be given to them.
9.
Learned counsel for the appellants has referred to me 
the   case   of  Yuvraj   Vithu   Sutar   vs.   Dinkar   Lahu   Sutar, 
reported   in  2012(2)   Mh.L.J.   174,   wherein,   this   court   has 
taken   a   view   that   in   the   matter   of   condonation   of   delay,   a 
highly   pedantic   approach   should   be   avoided   and   the 
appropriate   course   should   be   to   enhance   the   cause   of 
substantial  justice. That is a well settled law and there can be 
no quarrel about it.   But, at the same time law does not say 
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that even in cases where the delay is seen to be deliberate or is 
not   for   any   bona   fide   reasons   or   where   the   applicants   are 
negligent, still, it should be condoned.  The law in this regard 
has   been   settled   by   the   Hon'ble   Apex   Court   in   the   case   of 
Lanka Venkateswarlu (dead)  by L.Rs. vs. State of Andhra 
Pradesh and others, reported in  (2011) 4 SCC 363, referred 
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to me by the learned counsel for the respondents.  The Hon'ble 
Apex Court has laid down that while considering application 
for condonation of delay under Section 5 of the Limitation Act, 
1963   the   courts   do   not   enjoy   unlimited   and   unbridled 
discretionary  powers.     It has  further  held  that  the discretion 
has to be exercised in a systematic manner well supported by 
the reasons and that there is no scope for any whims or fancies 
in the matter.    The Hon’ble  Apex Court  has observed that if 
delay is condoned even in a case where the party is negligent 
in   implementing   its   rights   and   remedies,   it   will   be   equally 
unfair to deprive the other party of a valuable right that has 
accrued to it in law as a result of his acting vigilantly.   While 
explaining the concepts of liberal approach and reasonableness 
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in   exercise   of   the   discretion   by   the   Courts   in   condoning   the 
delay, the Hon’ble Apex Court referred to the observations of 
the Supreme Court made in the case of Balwant Singh (Dead) 
vs. Jagdish  Singh    and others,    reported   in  (2010)  8  SCC 
685, by reproducing them in paragraph 23 thus :
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“25.       We   may   state   that   even   if   the   term  
“sufficient   cause”   has   to   receive   liberal  
construction,   it   must   squarely   fall   within   the  
concept of reasonable time and proper conduct of  
the party concerned.   The purpose of introducing  
liberal construction  normally is  to introduce the  
concept of ‘reasonableness’ as it is understood in  
its general connotation.
26.       The law of limitation is a substantive law  
and   has   definite   consequences   on   the   right   and 
obligation  of a party to arise (sic a lis).   These  
principles   should   be   adhered   to   and   applied  
appropriately   depending   on   the   facts   and 
circumstances  of   a given   case.    Once   a valuable  
right   has   accrued   in   favour   of   one   party   as   a  
result of the failure of the other party to explain  
the delay by showing sufficient cause and its own  
conduct, it will be unreasonable to take away that  
right   on   the   mere   asking   of   the   applicant,  
particularly when the delay is directly a result of  
negligence,   default   or   inaction   of   that   party.  
Justice   must   be   done   to   both   parties   equally.  
Then alone the ends of justice can be achieved.  If  
a   party   has   been   thoroughly   negligent   in  
implementing   its   rights   and   remedies,   it   will   be  
equally   unfair   to   deprive   the   other   party   of   a 
valuable right that has accrued to it in law as a  
result of his acting vigilantly.”
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It will be also useful to refer to further observations 
10.
of the Hon’ble Supreme Court made in the said case of Lanka 
(supra) and appearing in paragraph 29, which are reproduced 
thus :
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“........Whilst   considering   applications   for  
condonation   of   delay   under   Section   5   of   the  
Limitation Act, the courts do not enjoy unlimited  
and   unbridled   discretionary   powers.     All  
discretionary   powers,   especially   judicial   powers,  
have   to   be   exercised   within   reasonable   bounds,  
known   to   the   law.     The   discretion   has   to   be  
exercised   in   a   systematic   manner   informed   by  
reason.     Whims   or   fancies,   prejudices   or  
predilections   cannot   and   should   not   form   the  
basis of exercising discretionary powers.”
11.
In an earlier case of  State of West Bengal vs. The 
Administrator, Howrah Municipality and others, reported in 
(1972)   1   SCC   366,    the   Hon’ble   Apex   Court   had   taken   a 
similar view.  It then held that delay in filing an appeal should 
not   have   been   for   reasons   which   indicated   the   party’s 
negligence in not taking necessary steps, which he could have 
or should have taken.
12.
It is thus clear from the above referred discussion of 
the   principles   of   law   governing   the   discretionary   powers   of 
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Court under Section 5 of Limitation Act, 1963 that though a 
technical   approach   in   the   matter   of   condonation   of   delay   is 
better   avoided,   these   discretionary   powers   should   not   be   so 
exercised as to help a party which is negligent and does not 
present   a   bona   fide   case.     This   is   based   on   the  principle,  
vigilatibus,   et  non   dormientibus,   jura   subveniunt   or   law  
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comes to the aid of the vigilant and not the slumbering.  It is 
also   clear   that   the   Courts   are   required   to   the   extent   it   is 
possible   to   strike   a   balance   between   the   rights   of   the   party 
seeking condonation  of delay and rights of the party staying 
vigilant in enforcing it’s rights and in doing so the Courts also 
have to see that no injustice  is caused to the party which is 
vigilant.
13.
As   already   stated,   the   appellants,   barring 
Surendrapal   Singh,   had   no   reasons   to   not   take   any   prompt 
steps   in   filing   an   appeal   especially   during   the   period   from 
15.2.2010 till 25.8.2010 and since it has not been shown that 
they were acting with due diligence, it must be held that these 
appellants were negligent in prosecuting the remedy available 
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to them at law.  Therefore, following the law laid down by the 
Hon’ble Apex Court in the said case of Lanka Venkateswarlu 
(dead)   by   LRs,     I   find   that   discretion   available   to   the   court 
under   Section   5   of   the   Limitation   Act,   1963   could   not   have 
been   worked   for   the   benefit   of   the   appellants.     The   first 
appellate Court was right in basing its finding on the reason, 
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that   other   appellants,   namely,   Surjeet   Singh,   Kuldeep   Singh, 
Smt. Harjeet Kaur and Smt. Prabhjot Kaur were not careful in 
resorting   to   the   remedy   available   to   them   to   challenge   the 
judgment and decree of the first appellate Court and that they 
were negligent in the matter.  This finding was based upon the 
facts before the first appellate Court and, therefore, I find no 
merit   in   the   argument   advanced   in   this   regard   on   behalf   of 
appellants   and   find   substance   in   the   contentions   raised   on 
behalf of respondents.
14. 
There   is   one   more   case   referred   to   me   by   learned 
counsel   for   appellants,   which   I  must   consider   before   parting 
with   the   judgment.     The   case   is   of  Improvement   Trust, 
Ludhiana vs. Ujagar Singh and others  reported in  (2010) 6 
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SCC 786.   In this case, the Hon’ble Apex Court has held that 
while   considering   application   for   condonation   of   delay,   no 
straitjacket formula can be prescribed and each case is to be 
weighed from its own facts and circumstances.  It has also held 
in   the   facts   of   that   case   that   delay   not   being   so   huge   as  to 
warrant   dismissal   on   hypertechnical   ground,   a   case   for 
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condonation of delay was made out and the appellants were 
directed   to   pay   Rs.50,000/­   by   way   of   costs   to   respondent 
No.5 therein.   This case has been relied upon by the learned 
counsel for the appellants, in support of his argument that if 
there is any inconvenience caused to the other side, it can be 
compensated   by   directing   the   applicants   to   pay   costs   to   the 
other   side   and   delay   can   always   be   condoned   upon   such   a 
condition.   I am not inclined to accept this argument.   In this 
very case of Improvement Trust, Ludhiana, the Hon’ble Apex 
Court has   held that conduct of parties itself is required to be 
seen and not its counsel and that there  should be bona fide 
reasons   put   forward   by   the   parties   seeking   condonation   of 
delay.  It has observed that the conduct, behavior and attitude 
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of   the   party   should   not   indicate   that   it   had   been   absolutely 
negligent in prosecuting the matter. These observations, would 
go to show that if there is any negligent conduct or deliberate 
delay, no sufficient cause can be said to be made out justifying 
exercise of discretion under Section 5 of the Limitation Act in 
favour of such a party.   I have already found that there has 
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been negligence in this case and, therefore, I do not think that 
this   is   a   fit   case   for   condoning   the   delay   by   putting   the 
appellants to the condition of payment of costs to other side, 
especially when the other side has been vigilant in protecting 
its rights which have accrued to it as a result of the judgment 
and decree passed on 10.6.2009.  The finding recorded in this 
behalf by first appellate Court against the appellants is indeed 
based on the facts before it and there is no perversity in it.  The 
substantial question of law is answered accordingly.
15.
In the circumstances of the case, the appeal deserves 
to   be   dismissed   and   accordingly   it   stands   dismissed.     There 
shall be no order as to costs.
 JUDGE
DWW
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