Mukhtar Hsan vs Hori Lal
2013 Latest Caselaw 4787 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 27
 

 
Case :- SECOND APPEAL DEFECTIVE No. - 248 of 1998
 

 
Appellant :- Mukhtar Hsan
 
Respondent :- Hori Lal
 
Counsel for Appellant :- A.A.Khan
 
Counsel for Respondent :- M.A.Qadeer
 

 
Hon'ble Ran Vijai Singh,J.

Delay Condonation Application No. 3696 of 1982 is taken up for order.

This is an application to condone the delay in filing the appeal. The appeal is reported to be beyond time by two years and 240 days. The applicant/appellant is an agriculturist. The respondent has filed a suit for specific performance of contract to sell the land of the appellant measuring about 5.26 acres for a consideration of Rs. 30,000/-, out of which Rs. 4,000/- was paid in advance.

It appears, the appellant has taken loan from the Bank and the land was mortgaged with the Bank. The respondent's suit was decreed by the trial court and the appeal filed by the appellant was dismissed by the lower appellate court. It is stated in paragraph no. 7 of the affidavit filed in support of the delay condonation application that the applicant/deponent was advised by the counsel to contest the execution case. The counsel before the court below has not advised to file second appeal against the judgment of the lower appellate court. It appears, in turn, the applicant contacted another counsel Sri Zamirul Hasan, Advocate, who has advised the applicant/appellant to file second appeal, after going through the judgments of the courts below. Thereafter, the applicant has approached this Court and filed the second appeal, which has become highly time barred.

A counter affidavit has been filed by the respondent, in which it is stated that the grounds taken in the delay condonation application are self-engineered as the appellant had throughout been negligent. The appeal is grossly barred by time and, therefore, it should be dismissed as barred by time and the application for condonation of delay deserves to be rejected.

I have heard Sri A.A. Khan, learned counsel for the applicant/appellant and Sri M.A. Qadeer, learned Senior Counsel assisted by Sri A.R. Khan, learned counsel for the respondent and perused the record relating to the delay condonation matter.

In paragraph no. 3 of the affidavit, it is stated that the appellant/applicant is an illiterate person and he cannot read and write. He can only make his initial in Urdu. In paragraph no. 7 of the same, it is stated that the appellant has been advised to contest the execution case. In paragraph no. 8 of the affidavit, it is stated that one Sri Zamirul Hasan, Advocate has advised him to file second appeal against the judgments and decree of the courts below. Thereafter, the applicant has contacted the present counsel Sri A.A. Khan. This averment has been made in paragraph no. 9 of the affidavit.

In the counter affidavit, there is a vague denial of the averments made in the affidavit filed in support of the delay condonation application. However, Sri Qadeer, learned Senior Counsel for the respondents submitted that the applicant has not explained day-to-day delay. Further, the explanation furnished by the applicant is vague, imaginery and no reliance can be placed thereon.

The Apex Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. (JT 1987 (1) SC 537 = 1987 (2) SCR 387) has laid down certain guidelines for disposal of the application filed under section 5 of the Limitation Act for extending the period of limitation. For appreciation, the the guidelines issued by the Hon'ble Apex Court are reproduced hereinunder:-

"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 condoned 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."

In this case although the appeal was decided on 4.9.1995 and the second appeal was filed on 10.8.1998, but day-to-day delay has not been explained prior to July 28, 1998. The delay after 28th July, 1998, the date on which the appellant contacted the counsel at Allahabad, has been properly explained. So far as the delay prior to 1998 is concerned, in view of the law laid down by the Hon'ble Apex Court in State of Haryana Vs. Chandramani 1996 SC 1623, where in the Supreme Court considered large number of its earlier judgments including Binod Bihari Singh Vs. Union of India (1993) 1 SCC 572; M/s Shakambari & Co. Vs. Union of India (1993) Supp. (1) SCC 487; Warlu Vs. Gangotribai (1995) Supp. (1) SCC 37; Ramlal Motilal & Chhotelal Vs. Rewa Coalfields Ltd. AIR 1962 SC 361; Concord of India Insurance Co. Ltd. Vs. Nirmala Devi AIR 1979 SC 1666; Lala Mata Din Vs. A. Narayanan, AIR 1970 SC 1953, has held that expression "each day's delay must be explained", does not mean that a pedantic approach should be made and it must be applied in a rational common sense pragmatic manner. In State of U.P. Vs. Mohd. Nooh AIR 1958 SC 86, the Apex Court has observed that justice should be administered in our courts in common sense, liberal way and be broad based on human values rather than on narrow and restricted considerations hedged round with hair splitting technicalities.

Thus, even if day-to-day delay may not have been explained, but if cause shown is sufficient and invoke the conscious of the Court to hear the matter on merit, the delay should not come in way.

The expression "sufficient cause" has also been explained by the Apex Court time and again. In State of Bihar and others Vs. Kameshwar Singh and others JT 2000 (5) 389, the Apex Court as observed as under:-

"Para 12................ The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient case for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice -oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause."

Further, the Apex Court in Perumon Bhagvathy Devaswam Vs. Bhargavi Amma (2008) 8 SCC 321 has observed as under:

"The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant."

Thus, while deciding such an application justice oriented approach is required to be adopted. Justice is the virtue, by which the society/ court/ Tribunal gives to a man what is his due, opposed to injury or wrong. (Wharton's Law Lexicon, 1976 Reprint Edn., p. 552). Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. Therefore, while tempering the justice with mercy, the Court has to be very conscious that it has to do justice in exact conformity to some obligatory law for the reason that human actions are found to be just or unjust as they are in conformity with or in opposition to the law. In Delhi Administration Vs. Gurdip Singh Uban & ors., (2000) 7 SCC 296, the Hon'ble Apex Court observed as under:-

"The words 'justice' and 'injustice', in our view,. are sometimes loosely used and have different meanings to different persons, particulartly to those arrayed on opposite sides..... Justice Cardozo said, 'The Web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seems to be simple, are found, any when analysed, to be complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded." (Selected Writings of Cardozo, pp 223-24; Fallon Publications, 1947)."

It is a case where 5.26 acres of land of a rustic villager has been agreed to be sold for a consideration of Rs. 30,000/- for satisfying the loan of the Bank. The consideration as per submission of learned counsel for the appellant is illusory and in case agreement is allowed to be enforced, the applicant would be on the road as there is no other land other than the land in suit. Section 20 of the Specific Relief Act comes for rescue of such litigant.

Although, while dealing with the delay condonation matter, I am not supposed to address the merit of the case, but certainly, the merit of the case cannot be brushed aside while considering the application for condonation of delay. In view of the observation made by the Apex Court in State of Haryana Vs. Chandra Mani and Others 1996 (3) SCC 132 wherein it is observed that the court should decide the matters on merits unless the case is hopelessly without merit, I find that cause shown is sufficient to not approach the court within time.

Otherwise also, Law of Limitation was not meant to take away the right of appeal (N. Balakrishnan Vs. M. Krishnamurthy, 1998 (7) SCC 123). In view of the averments made in paragraph no. 7 of the affidavit, the appellant has been made victim of the wrong legal advise of a counsel. It is well settled that no one should suffer for the lapse of other or because of wrong legal advice of the counsel. Imparting substantial justice is the purpose of the establishment of the courts. This view has been taken by the Apex Court time and again in number of cases.

However, the inconvenience caused to the other side during this period can also not be over looked. The word, 'imparting substantial justice' means justice to both the parties in accordance with law. Taking note of that, the delay in filing the appeal is condoned subject to payment of Rs. 5,000/- as cost, which is to be paid to the respondent directly or through counsel. The delay condonation application is allowed.

After filing of receipt of payment of the cost by the appellant, the Office shall allot the regular number and list the appeal under the appropriate heading.

Order Date :- 31.7.2013

Amit Mishra