THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No.3061 OF 2017
ORDER:
This civil revision petition is directed against the order, dated 16.03.2017, in I.A.No.97 of 2016 in unnumbered A.S.No.-of 2017 on the file of IX Additional District Judgee, Wanaparthy.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. The petitioner, who is the plaintiff, filed O.S.No.34 of 2012 against the respondent herein on the file of Junior Civil Judge, Wanaparthy for recovery of money and the said suit was decreed on 13.10.2015. Aggrieved by the said judgment, the respondent preferred the appeal with delay of (172) days along with application in I.A.No.97 of 2016 to condone the said delay in preferring the appeal.
4. It is stated in the affidavit filed in support of I.A.No.97 of 2016 by the respondent that due to ill-health and financial problems, he could not contact his counsel. As such, the appeal was not filed within time. The said delay was neither willful nor intentional. The 2 petitioner resisted the said application on the ground that there is no sufficient cause to condone the delay and there are no merits in the said application.
5. The trial Court after hearing both sides allowed I.A.No.97 of 2016 on costs of Rs.1000/- (Rupees one thousand only) payable to the petitioner. Aggrieved by the same, the petitioner filed the present revision on the ground that the trial Court ought not to have allowed the application, as there was no iota of proof to substantiate the ill- health of the respondent and financial crunch.
6. Learned counsel for the petitioner submits that the respondent has not filed any medical record to show his ill-health and he failed to explain day to day delay in filing the appeal. As such, the impugned order is unsustainable. In support of his contentions, he relied on the judgments of Balwant Singh (dead) v. Jagdish Singh1 and Allala Bhagavanth Rao v. Garvandula Vijayalaxmi2.
7. Learned counsel for the respondent submits that the respondent could not file the appeal within the stipulated time as the 1 2010(5) ALD 97 (SC) 2 2015(5) ALD 598 3 he was suffering from ill-health and due to financial crisis, he could not contact his counsel and thus, there occurred a delay of (172) days in filing the appeal. The said delay was neither willful nor intentional. As such, the trial Court has rightly allowed the application.
8. Thus, the question that arises for consideration is whether the order, dated 16.03.2017, passed by the trial Court is sustainable?
9. Undisputedly, the suit filed by the petitioner in O.S.No.34 of 2012 for recovery of money against the respondent was decreed by the trial court vide judgment, dated 13.10.2015. The respondent preferred an appeal before the appellate court along with an application to condone the delay of (172) days in filing the appeal.
10. The Apex Court in COLLECTOR, LAND ACQUISITION, ANANTNAG v. MST. KATIJO3 at para 3 held as follows:
"The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--
that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not 3 (1987) 2 SCC 107 4 appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so".
11. It is settled principle of law that condonation of delay is a matter of discretion of the Court and Section 5 of the Limitation Act, 1962 does not say that such discretion can be exercised, only if the 5 delay is within certain limit. Length of delay is no matter, acceptability of explanation is the only criteria. The word 'sufficient cause' is not defined either in Limitation Act or in the Code of Civil Procedure; There is no straight jacket formula to decide whether the cause shown for condonation of delay is sufficient cause or not. It depends on the facts and circumstances of each case, the Court can exercise discretion and decide the sufficient cause. In Lanka Venkateswarlu (Died) by L.Rs. v. State of A.P.4, the Apex Court heavily laid on the Courts when to allow the petitions, though no sufficient cause is made out, and held as under:
"We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation, especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.
The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. 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 4 2011 (1) UPLJ 242 (SC) 6 reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers."
12. Coming to the facts of the present case, there was delay of (172) days in filing the appeal. But, no where, in the affidavit, the dates of commencement of his sickness and recovery disclosed. Except making a bald allegation, no medical certificate was produced to substantiate his contention. Therefore, in the absence of details of ill-health and duration and documentary proof from a competent Doctor, it is not justified to accept the contention that there is sufficient cause to condone the delay of (172) days in filing the appeal. Having regard to the judgment of Lanka Venkateswarlu supra, I am of the view that the trial Court has not exercised its discretion in judicious and systematic manner and erroneously allowed the application only by relying on the averment of respondent that he suffered from ill-health without any kind of documentary evidence like medical certificate to substantiate his contention and condoned the delay by imposing certain costs. In instant case, the first ground urged for condonation of delay is due to ill-health, the petitioner was unable to prefer the appeal within time. The petitioner failed to make out any sufficient cause except making a bald unsubstantiated allegation in the affidavit. Keeping in view, the law 7 declared by Apex Court on the concept of real justice, substantial justice, the Courts cannot allow the petitions under Section 5 of the Limitation Act without any sufficient cause for the delay.
13. For the foregoing reasons, I am of the view that the trial Court has committed error in condoning the delay and liberally construed the word 'sufficient 'cause, improperly exercised judicial discretion. As such, the impugned order suffers from infirmities warrants interference.
14. In the result, the Civil Revision Petition is allowed. The impugned order, dated 16.03.2017, in I.A.No.97 of 2016 in unnumbered A.S.No.---of 2017 is set aside. There shall be no order as to costs. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 27.10.2022 Nvl