Matadeen vs State Of U P And 10 Others
2021 Latest Caselaw 3438 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - B No. - 1737 of 2020
 
Petitioner :- Matadeen
 
Respondent :- State Of U P And 10 Others
 
Counsel for Petitioner :- Anurag Vajpeyi,Gaurav Tripathi
 
Counsel for Respondent :- C.S.C.,Adya Prasad Tewari
 

 
Hon'ble Ajay Bhanot,J.

1. Heard Sri Gaurav Tripathi, learned counsel for the petitioner and Sri Adya Prasad Tewari, learned counsel for the respondents.

2. While allowing the restoration application, the Deputy Director of Consolidation in the impugned order dated 31.12.2019 has found that some of the parties had died during the pendency of the proceedings before the court below. However, the legal heirs of the aforesaid parties were not noticed. In the absence of substitution of legal heirs of one of the parties the impugned order was passed. The impugned order could not have passed on merits without hearing all necessary parties, including the legal heirs of the deceased parties to the lis. While condoning the delay the learned court below has found against the petitioner that he did not file a counter affidavit traversing reasons for the delay mentioned in the affidavit along with the restoration application. The averments in the said affidavit were accepted on their face value. The narrative in the impugned order had noticed lack of service upon the applicants. The lack of knowledge of the applicants was found by the court below to be sufficient cause for condonation of delay. Delay was accordingly condoned. However the court has also noticed that it is imperative to decide the dispute which engages substantive rights of parties on merits rather than shutting the door of justice on their technicalities.

3. It is now apposite to reinforce the narrative of good authority in point. The purpose of laws of limitation is to ensure that the parties remain vigilant to their cause and institute their claim in good time. The mandate of laws of limitation is not to shut the doors of justice to the parties or decline adjudication on merits. On the contrary it is the constant endeavour the courts and authorities to adjudicate issues on merits, and dispense justice on a substantive basis.

4. There is good authority to hold that the courts and authorities should adopt a liberal, pragmatic and a justice oriented approach matters of condonation of delay. Equally pedantic views should be avoided and servitude to procedure which results in miscarriage of justice in such matters should be eschewed.

5. Hon'ble Supreme Court in Collector, Land Acquisition V. Mst. Kati Ji and others, reported at 1987 (13) ALR 306 (SC) took a liberal view of the phrase "sufficient cause" and held as follows:

"The legislature has conferred the power to condone delay by enacting section 5 of the 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 of 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 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 condoned, the highest that can happen is that a cause would he decided on merit 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 and pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side can not 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 restoring to delay. In fact, he runs a serious risk.

6. It must be grapped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

6. This view was fortified by the Hon'ble Supreme Court in N. Balakrishnan Vs M. Krishnamurthy reported at 1998 (7) SCC 123. The relevant portion of the judgment is extracted here under:-

"The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy."

7. Conduct and vigilance shown by a party are relevant criteria for consideration in an application seeking condonation of delay. In Shakuntala Devi Jain V. Kuntal Kumari reported at AIR 1969 SC 575, the Hon'ble Supreme Court held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

8. The Hon'ble Supreme Court liberally construed the expression "sufficient cause" in New India Insurance Co. Ltd. V. Smt. Shanti Misra reported at AIR 1976 SC 237, by holding that discretion given by section 5 should not be defined so as to convert a discretionary matter into a rigid rule of law.

9. In O.P. Kathpalia V. Lakhmir Singh reported at AIR 1984 SC 1744, the Hon'ble Supreme Court cautioned the courts to be mindful of the consequences of refusal to condone the delay leading to miscarriage of justice.

10. The law set its face against an injustice-oriented approach while considering the applications for condonation of delay in Smt. Prabha V. Ram Prakash Kalra reported at 1987 (Suppl.) SCC 338.

11. The authorities cited above are applicable to the facts of the case, and reinforce the impugned order dated 31.12.2019. The impugned order is correct in facts and consistent with law.

12. In the restoration application it has been clearly asserted that the applicant did not have any knowledge of the proceedings. The correctness of this assertion is borne out by the findings of the learned trial court that no notice was summoned or issued to the legal heirs of the deceased persons.

13. The findings in the impugned order are supported by reasons and were made after affording opportunity of hearing to all parties. This Court exercising writ jurisdiction is reluctant to interfere in findings of fact returned by courts below upon consideration of evidence; unless perversity or procedural impropriety is established therein.

14. The petitioner has failed to establish any perversity in findings, or procedural impropriety by the courts while passing the impugned order to warrant exercise of writ jurisdiction in favour of the petitioner.

15. There is no infirmity in the impugned order passed by the court below.

16. The learned revisional court shall decide the matter after permitting the revisionist to substitute the legal heirs of parties who have died during the pendency of the revision. Notices shall be issued to the legal heirs of the parties who have died during the pendency of the litigation. All endeavors shall be made to decide the revision expeditiously considering the fact that the matter is being pending since long before the court below.

17. The writ petition is liable to be dismissed and is dismissed.

Order Date :- 15.3.2021

Pravin