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
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
ig
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
ig
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.
ig
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.
ig
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
ig
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
ig
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.
ig
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
ig
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
ig
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
ig
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
ig
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
ig
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
ig
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
ig
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 :
ig
“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 :
ig
“........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
ig
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,
ig
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
ig
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
ig
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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