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Smt. Rameshwari Devi and anr. Vs. Sansar Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberRegular Second Appeal No. 61 of 1978
Judge
Reported inAIR1986HP67
ActsLimitation Act, 1963 - Sectioin 5
AppellantSmt. Rameshwari Devi and anr.
RespondentSansar Chand and ors.
Appellant Advocate Inder Singh, Adv.
Respondent Advocate K.D. Sood, Adv.
DispositionAppeal allowed
Cases ReferredUnion of India v. Ram Charan
Excerpt:
- .....in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would expect for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined, while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.'this court then proceeded to make the following observations so as to highlight the approach required to be adopted when a case calling for the exercise.....
Judgment:
ORDER

P.D. Desai, C.J.

1. The appeal is directed against the decision of the learned District Judge, Shimla, refusing to condone the delay in presenting an appeal on the ground that sufficient cause, within the meaning of Section 5 of the Limitation Act, 1963, was not made out and consequently dismissing the appeal.

2. The appellants are the original plaintiffs. The suit, out of which the appeal arises, was dismissed on April 30, 1975. At the time when the judgment was pronounced, though the learned counsel for the appellant was present, the appellants themselves were not present. The appellants applied for the certified copies of the judgment and the decree on June 2, 1975, and on October 30, 1975 respectively and they were delivered to them on July 22, 1975 and on December 3, 1975, respectively. Be it stated that the case of the appellants, which is supported by the material on record, is that a certified copy of the decree was also applied for on June 2, 1975 but they were informed at the time of the delivery of the certified copy of the judgment on July 22, 1975, that the decree sheet having not been drawn Up it was not possible to supply to them a certified copy thereof. The appellantsthereupon made an application to the trial court on July 23, 1975, praying that the decree sheet be prepared. Pursuant thereto the decree sheet appears to have been prepared on July 25, 1975 but the actual date on which it was signed by the learned trial judge is not capable of being determined on the material on record. After the decree sheet was accordingly prepared, a fresh application for a certified copy thereof was made by the appellants on October 30, 1975 and delivery thereof was given to them on December 3, 1975. The appeal was presented on December 4, 1975. Against, the background aforesaid, even taking the worst view against the appellants, the delay in the presentation of the appeal admittedly extends to a period of about six months.

3. Along with the appeal, the appellants made an application for the condonation of delay duly supported by an affidavit sworn by the first appellant. The application stated that the first appellant was a widow of advanced age and that the second appellant, who is her daughter, was in a family way during the period when the case was ripe for decision in the trial Court. Under those circumstances, the appellants were unable to contact their counsel and they could not keep in touch with the progress of the suit. The appellants learnt about the dismissal of the suit only when the husband of the second appellant met the counsel on June 2, 1975 and was informed about the dismissal of the suit According to the appellants, there was, therefore, sufficient cause for the condonation of delay. Be it stated that the averments made in the application were not contested by the respondents by placing on record an affidavit or otherwise.

4 The learned District Judge dismissed the application for condonation of delay on the ground that the grounds set out therein were 'simply vague' and that they were 'insufficient to convince a prudent person that on such grounds the appellants were unable to contact their lawyer and find out the fate of their suit which was ripe for decision'. It was found that there was no allegation that the first appellant was so old or physically weak as to be unable to contact the counsel and it was beyond comprehension that she could have remained so busy all throughout because the second appellant was in a family way that she could not have contacted even the counsel It wasfurther found that no material was placed on the record of the case to show when the second appellant had actually delivered a child so that it could be inferred that on that account she was unable to contact her counsel The mere fact of her being in a family way could afford 'no reason to assume that she was not in a position to move about or to contact her lawyer'. On the reasoning aforesaid it was held that no sufficient cause was made out to condone the delay and the application as well as the appeal were dismissed.

5. At the stage of the admission of this appeal, the statement of the counsel who represented the appellants in the trial court was recorded by this Court on September 13, 1978. The counsel stated that he represented both the appellants before the trial court and that the second appellant was a minor at the relevant time. A person, whose name he did not know but whom he described as 'one tall gentleman, who is employed in the Himachal Pradesh Secretariat and who was one of the relations of the plaintiffs', used to see him at his office on behalf of the appellants, to give instructions. Neither the said person nor the appellants were present when the judgment was pronounced. The counsel further stated that he did not remember whether that gentleman had collected information from his office about the pronouncement of the judgment or whether he had given intimation to the appellants with regard to the dismissal of the suit in writing.

6. The substantial question of law between the parties which arises against the aforesaid background is whether, in exercising his discretion in the matter of condonation of delay, the learned District Judge acted judicially and keeping in view the true principle governing the exercise of such discretion and correctly applied the principle to the uncontroverted facts on the record. Be it stated in fairness to the learned District Judge that the approach of the courts in the matter of condonation of delay on sufficient cause being shown has undergone a sea change in the recent past and that the principle governing the exercise of discretion in such matters has acquired a somewhat new dimension. The hypertechnical approach which once required satisfactory explanation of the delay day by day has yieldedplace to the broad approach which enjoins the courts not to treat statutory provisions requiring the taking of actions within the time limited by law as penal statutes for punishing the erring parties and to administer such laws in such a manner as to ensure and advance the cause of substantial justice. In the context of the provisions of Order 22 Rules 3 and 9 of the Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act, 1963, the Supreme Court has condoned delay ranging between two years to six years on the ground, inter alia, that the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal and that in a country like ours, where there is so much of poverty, illiteracy and ignorance, it would not be fair to presume that every one knows that the legal heirs have to be brought on record within a certain time (See : Sital Prasad Saxena (dead) by Lrs. v. Union of India, AIR 1985 SC 1 and Ram Sumiran v. D.D.C. (1985) 1 SCC 431 : (AIR 1985 SC 606). Fresh air has thus been breathed into the words 'sufficient cause' and, although the question whether there is sufficient cause for the condonation of delay is a matter which calls for determination on the facts and circumstances of each case, such determination cannot but be coloured now by the liberality of approach manifest in the decisions rendered by the highest court in the last few years.

7. In Mangal Chand v. The Forest Department through Divisional Forest Officer, Nichar, ILR (1984) Him Pra 259, this Court also had an occasion to deal with a case in which an application for condonation of delay made under the fifth proviso to Section 10, Sub-section (1) of the Workmen's Compensation Act, 1923 was rejected by the Commissioner on the ground that 'sufficient cause' was not made out It was there observed that the statutory perspective of the power of the Court to condone delay in institution of proceedings on sufficient cause being shown and the principles regulating the exercise of such power are well-settled. Reference was made to the decision in Sarpanch Lonand Gram Panchayat v. Ramgiri AIR 1968 SC 222 where, in the context of an analogous provision, it was held as follows (vide para 3) :

'This discretion like other judicial discretionmust be exercised with vigilance and circumspection according to justice, common sense, and sound judgment. The Discretion is to know through law what is just, see Keighley's case (1609) 10 Co Rep 139a : 77 ER 1136.'

Reference was also made to the following, passage occurring in the decision of the Madras High Court in Krishna v. Chathappan, (1890) ILR 13 Mad 269 which has received approval in Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411, Ram Lal v. Rewa Coalfields Ltd., AIR 1962 SC 361 and Lonand Gram Panchayat's case (AIR 1968 SC 222):

'We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.'

As regards the nature of proof required for establishing the suggested 'sufficient cause', the following observations made at page 219 of the report in Union of India v. Ram Charan, AIR 1964 SC 215 were extracted and relied, upon :

'The Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would expect for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined, while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.'

This Court then proceeded to make the following observations so as to highlight the approach required to be adopted when a case calling for the exercise of discretion in such matters comes up for consideration :

'It is pertinent to point out in this connection that courts, tribunals and quasi-judicial authorities must always bear in mind that whereas refusal to condone delay might resultin injustice by a meritorious case being thrownbut without trial, condonation of delay wouldat the highest result in decision of the case onmerits. Furthermore, no litigant ordinarily standsto benefit by instituting a proceeding beyondtime and there is no presumption that thedelay has been occasioned deliberately or onaccount of culpable negligence or that therewas want of bona fides. The presumption, ifany, would be just the other way round. Pedanticand unpragmatic approach should not be madeto the matter and the court need not be over-strict in expecting proof of the suggestedsufficient cause. It is of paramount importancethat there should be awareness that since thisdiscretion has to be exercised withcircumspection according to justice, commonsense and sound judgment and for advancingsubstantial justice, all factors including thestatus and background of the parties, theprevious history if any, of the litigation andthe conduct of the parties therein up to date,the period of and circumstances leading tothe delay and the probity of the suggestedcause for delay, the quality of legal assistance,guidance and advice received by the defaultinglitigant and, in a State like ours, the difficultterrain and inclement weather rendering accessto the copying agency, counsel and courtextremely difficult, if not impossible, in certainseasons and in certain regions, are all matterswhich, amongst others, must enter intoconsideration and the final decision must bearrived at in the over-all light of all the relevantcircumstances.'

8. Against the backdrop of these well-settledlegal principles, it is apparent that the learnedDistrict Judge committed an error of law inthe exercise of his discretion in refusing tocondone the delay on the grounds pleaded although they were not controverted and that the error has resulted in grave miscarriage of justice. It could not have been overlooked that the appellants were ladies and that one of them was indisputably a widow of advanced age and the other was in a family way at the material time. I say 'indisputably' because the relevant averments made in the application duly supported by an affidavit were not controverted by the other side. It could not have been overlooked also that in our country litigation on behalf of the ladies, especially ladies circumstanced as the appellants herewere, is ordinarily not personally attended toin them at all the material stages and that oneof their kinsmen usually devotes his time andattention to such litigation on their behalf. Noevidence on this point is necessary becausethese are facts of which judicial notice can betaken and, even if any evidence was necessary,it has now come on the record of the case byway of a statement of the counsel whorepresented the appellants in the trial courtand who has stated that one of their relativesused to instruct him in regard to the litigation.Under those circumstances, when neither theappellants nor their relative was present at thetime of the pronouncement of the judgmentby the trial court, their plea that there wassufficient cause to condone the delay sincethey did not come to know about the adversedecision of the suit till the husband of thesecond appellant met the counsel on June 2,1975 could not possibly have been rejectedEven the counsel in the course of his statementhas stated that he did not remember whetherthe person who looked after the litigation onbehalf of the appellants had collectedinformation from his office about thepronouncement of the judgment and whetherhe had given intimation to the appellants withregard to the dismissal of the suit in writing.The delay of about six months in thepresentation of the appeal against the aforesaidfactual background could not have beenregarded per se as disclosing negligence orwant of bona fides on the part of the appellants.The fault or want of diligence, if any, layelsewhere for which the appellants cannot beblamed. Besides, a considerable portion of thedelay is attributable partly, if not wholly, tothe confusion which arose on account of thenon-preparation of the decree sheet in timeby the trial court Having regard to all thecircumstances of the case, in my opinion, itwas impossible to reach the conclusion thatsufficient cause to condone the delay was notmade out.

9. For the foregoing reasons, the appeal is allowed. The application made by the appellants for the condonation of delay is granted. The case is remanded to the District Court with a direction that the appeal will be registered and that it will be disposed of as expeditiously as possible and not later than September 30, 1985. No order as to costs.

10. The parties will appear before the District Court on April 25, 1985.


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