Smt. Sharda Devi vs A. D. J. And Another
2012 Latest Caselaw 4138 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 
Case :- WRIT - A No. - 19493 of 2010
 

 
Petitioner :- Smt. Sharda Devi
 
Respondent :- A. D. J. And Another
 
Petitioner Counsel :- Shambhavi Nandan, B.K.Pandey
 
Respondent Counsel :- Ajay Kumar Singh, Ashish Kumar Singh, SC
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri B.K. Pandey, learned counsel for the petitioner and Sri A.K. Singh, learned counsel for the respondent no. 2.

2. Admittedly the suit for ejectment and recovery of rent was filed being S.C.C. Suit No. 59 of 2003 by respondent no. 2 against petitioner-tenant. The aforesaid suit was contested by petitioner-tenant and thereafter vide Small Cause Court Varanasi's judgment dated 15.11.2007 the suit was decreed. The petitioner was directed to handover vacant possession of premises in dispute to respondent no. 2-landlord alongwith arrears of rent for the month of June 2000 to May 2003.

3. It is admitted that petitioner did not challenge the said judgment and order dated 15.11.2007 within the period of limitation before any higher Court. It is almost after two and half years, i.e., in March 2010, petitioner filed Small Cause Revision No. 108 of 2010 alongwith an application under Section 5 of Limitation Act and therein the reason for delay was explained in para 11 and 12 that previous counsel did not inform her about the judgment dated 15.11.2007, and, she came to know only when pursuant to Execution Case No. 18 of 2009, the Court Amin visited the disputed accommodation. Thereafter the petitioner contacted her counsel, got the record inspected on 04.03.2010, and thereafter she applied for certified copy and filed revision.

4. The aforesaid application was contested by respondent no. 2 disputing petitioner's assertion regarding lack of knowledge.

5. The Revisional Court after considering petitioner's application seeking condonation of delay has found that petitioner has miserably failed to substantiate that her counsel did not inform and hence having found no ground to condone such a long delay, has rejected the said application.

6. Before this Court also the petitioner has basically made averments that respondent no. 2 has no authority to file execution application and even the suit was wrongly decreed but regarding almost two and half years delay in filing the revision he has not made any substantive averment except in para 20 that delay was properly explained but delay condonation application has wrongly been rejected by court below.

7. This Court enquired from learned counsel for the petitioner, in order to ensure that complete justice must be done to the parties, as to who was the counsel who allegedly committed professional misconduct by not communicating trial court's judgement for almost two and half years; who was the person doing pairavi of the case, and whether it was being pursued by petitioner herself or through some pairokar and if petitioner herself was looking into, whether she enquired about progress of case from her counsel in the last two and half years or not and its reason, but learned counsel for the petitioner kept silence and could not/did not reply any of these queries. He also could not tell, whether petitioner made any complaint against such counsel and even the name of counsel and his particulars are not disclosed. Petitioner has not made any attempt to obtain affidavit of the counsel verifying that he did informed trial court's judgement to the petitioner or her pairokar.

8. On the contrary, a perusal of affidavit supporting delay condonation application shows that petitioner in a very cursory manner has tried to sum up the cause of delay as if the delay of two and half years was not material and would have to be condoned by Revisional Court as a matter of right.

9. In my view the court below in the above facts and circumstances has not committed any error in rejecting petitioner's application for condonation of delay.

10. A Court of Law does not help a lethargic and irresponsible litigant. A litigant should be alert and must not attempt to ponder over the court's equitable jurisdiction despite any kind of negligence on his part. It is true that each and every day's delay may not be required to be explained but yet a litigant has to make out a case that there was a valid reason which prevented him/her from approaching the Court within time and in case delay is not condoned, he/she will suffer grave injustice.

11. It cannot be doubted that the courts exercise wide discretion in the matter of condonation of delay but that discretion has to be judicious, founded on relevant facts and cannot be arbitrary. It would depend, therefore, on various factors, that too varying from case to case. There cannot be a thumb rule which can be applied in such matters. The petitioner was well aware of the suit which was contested by her at every stage. It is not placed on record that date of judgment was not informed by Trial Court or judgement was delivered all of a sudden. It is also not stated that judgment was reserved without notifying date of its delivery.

12. In District Courts normally the litigants attend court on every date fixed by Presiding Officer. The counsels come to attend the court when case is called out in the court and litigant present in the court comes to call the counsel. The petitioner has not stated anywhere whether she herself was doing pairavi in this matter or it has been looked after on her behalf by any one else. It was the duty of petitioner, or if anybody else was looking after her case, of such person, to come to the court and enquire from counsel and also peruse the record whenever it is necessary. In what manner the petitioner could not get information about the date when judgment was delivered is also not clear from record. All these facts have to be disclosed by petitioner in order to provide credence and reliability to her stand since it is she who was invoking the jurisdiction of court for condonation of extraordinary long delay in filing the revision.

13. Moreover, the respondent no. 2 in his objection dated 12.03.2010 has stated in para 4 that hearing of suit held in presence of petitioner-defendant and in presence of both the parties the date was fixed for delivery of order. He has further said that on every date the petitioner-defendant used to appear before Trial Court, hence why she did not enquire about the result of suit when she knew the factom of date of delivery of judgment has not been explained at all. On this aspect the Revisional Court has also made its observations against the petitioner. Nothing has been placed before this Court also to clarify in this regard. The petition is conspicuously silent on this aspect of the matter.

14. In Jagannath Prasad Vs. Sant Hardasram Sevashram and others, 1978 ALJ 261 the Court said that the conduct of party should be in consonance with due diligence. If the conduct falls short of standard of due care and attention attributed to an ordinary and prudent person, it would amount to negligence in prosecution of case and the court shall decline to condone delay in such matters. A sufficient cause does not include within itself reckless or gross negligent conduct of litigant.

15. The Apex Court in P.K. Ramchandra Vs. State of Kerala and another, AIR 1998 SC 2276 said that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when statute so prescribes. The courts have no power to extend limitation on equitable grounds.

16. In Harbir Singh Malik Vs. Additional District and Sessions Judge, Court No. 11, Lucknow and others, 2009(3) ARC 122 the Court declined to condone delay sought to be explained on the ground that counsel did not inform the concerned litigant.

17. In Ram Pal Vs. Birmo (Smt.), 2008(3) ARC 302 this Court held that blaming with an endeavour to explain delay without showing that litigant take any action against the counsel permissible in law, made any complaint whatsoever against him, or even did not disclose his name etc., is sufficient to demonstrate that the explanation is not worthy of credence and would not justify condonation of delay particularly when it is an extraordinary long time.

18. In the present case the petitioner has proceeded as if almost two and half years delay is nothing but as a matter of course shall be and must be condoned. Her approach is extremely casual and superficial. The explanation lacks any credibility and generate no confidence so as to be believed. The Revisional Court has looked into all these aspects in detail and I find no error apparent on the face of record in the order of Revisional Court warranting any interference.

19. The writ petition, therefore, lacks merit. Dismissed.

20. No costs.

Order Date :- 13.9.2012

AK