Gulshan Homz Pvt. Ltd. Noida Thru. ... vs Sushant Arora
2022 Latest Caselaw 20013 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 
Case :- RERA APPEAL No. - 33 of 2022
 
Appellant :- Gulshan Homz Pvt. Ltd. Noida Thru. Its Authorized Signatory
 
Respondent :- Sushant Arora
 
Counsel for Appellant :- Abhishek Khare,Aahuti Agarwal,Abhishek Khare
 
Counsel for Respondent :- Harish Pandey
 

 
Hon'ble Jaspreet Singh,J.

1. Heard learned counsel for the appellant and Sri Harish Pandey, learned counsel for the respondent.

2. The instant appeal has been preferred under Section 58 of the 'Uttar Pradesh Real Estate (Regulation and Development) Act, 2016 was admitted by the Court on the following question of law:-

"Whether the Appellate Tribunal was justified in rejecting the application for seeking condonation of delay while dismissing the appeal solely on the aforesaid grounds."

3. The submission of learned counsel for the appellant is that against the order passed by the RERA Authority dated 02.11.2021. An appeal was preferred before the Appellate Tribunal. The said appeal was accompanied by an application seeking condonation of delay which by means of the judgment dated 22.09.2022 has been rejected, as a consequence, the appeal also stood dismissed.

4. It is pointed out that in the application seeking condonation of delay, the reasons were indicated why the appeal was preferred with delay, however, taking a pedantic view, the Appellate Tribunal rejected the application.

5. It has been pointed out that the appellant had applied for the certified copy of the judgment and though the appeal ought to have been filed in the month of January, 2022 but since post-covid, the office of the appellant-company had to be shifted and during this process which continued till April, 2022, the file relating to the case in question was mislaid.

6. It is only when the file was traced, the appeal was filed along with the application seeking condonation of delay but this aspect of the matter has not been appropriately considered by the Appellate Tribunal.

7. It has also been submitted that the Country had been passing through the Covid-19 pandemic and taking note of the same, the Apex Court had already excluded the period of limitation in the case of Suo Moto Writ Petition (C) No. 3 of 2020 In re:- Cognizance for Extension of Limitation whereby for the period of 20th March, 2020 till 28th February, 2022, the limitation for all the periods of limitation was excluded.

8. It is further urged that the impact of covid-19 pandemic was also reflected on the real estate industry as a whole, coupled with the infrastructural problems faced by the appellant company, it necessitated the appellant to re-locate from the existing office situate at Vaibhav Khand, Indira Puram, Ghaziabad to Sector-129, Noida.

9. It is also pointed out that the delay was not so humongous that it could not have been condoned and even otherwise judicial discretion is to be exercised in favour of the matter being heard substantively rather than be shut out on technical grounds.

10. It has also been indicated that the proceedings arose from an issue where the settlement had been arrived at between the appellant and the respondent and after the said settlement was acted upon that the respondents instituted a complaint which came to be allowed against which the appeal was preferred. The appellant has substantial case on merits and it is prayed that the delay ought to have been condoned.

11. In support of his submissions, he has relied upon a decision of the Apex Court in the case of Ram Nath Sao Alias Ram Nath Sahu and others Vs. Gobardhan Sao and others reported in (2002) 3 SCC 195 as well as on a decision rendered by this Court in the case of Devi Prasad Dwivedi Vs. U.P. State Road Transport Corporation Office and Another in FAFO (D) No. 788 of 2012 decided on 04.11.2019.

12. The learned counsel for the respondent while opposing the aforesaid prayer submits that though the appeal ought to have been filed uptil the moth of January, 2022 and even if the benefit of the order passed by the Apex Court in the case of Suo Moto (Supra) is granted to the appellant, even then the period came to lapse in May, 2022. Even thereafter, there has been no proper explanation as the appeal came to be filed in the month of September, 2022 and for this period, there is no explanation.

13. It has further been submitted that though the delay can be condoned and the matter can be liberally construed but at the same time, it is not as a matter of right that any cause whatever may be shown should be accepted. It is pointed out that from the perusal of the averments made in the affidavit accompanying application seeking condonation of delay, vague averments have been made which is not duly substantiated and in absence of proper explanation, the Appellate Tribunal was justified in rejecting the application. In the aforesaid circumstances, there can be no error found.

14. The Court has heard the learned counsel for the parties and also perused the material available on record. In so far as the question regarding condonation of delay is concerned, there is a stream of judgments of the Apex Court where the issue has been taken note of which has been considered by this Court in the case of Devi Prasad Dwivedi (supra). The relevant paras reads as under:-

"It will be gainful to refer to the decision of the Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. MST Katiji and Others reported in 1987 (2) SCC Page 107:- where the relevant portion reads as under :-

"The legislature has conferred the power to condone delay by enacting Section 5 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 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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a liti- gant, are accorded the same treatment and the law is admin- istered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experi- ence shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-mak- ing, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more diffi- cult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits.

15. The Apex Court once again in the case of Ram Nath Sao Alias Ram Nath Sahu and Others Vs. Gobardhan Sao and Others reported in 2002 (3) SCC 195 had the occasion to consider the expression "sufficient cause" and it held as under:-

In the case of N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days in filing application for setting aside exparte decree for which application for condonation of delay was filed. The trial court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of Judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial court was not justified in condoning the delay resulting into reversal of its order whereupon this Court was successfully moved which was of the view that the High Court was not justified in interfering with order passed by trial court whereby delay in filing the application for setting aside exparte decree was condoned and accordingly order of the High Court was set aside. K.T.Thomas, J., speaking for the Court succinctly laid down the law observing thus in paras 8, 9 and 10 :

"8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The 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."

[ Emphasis added]

11. The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

[ Emphasis added]

12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.

16. Yet again in the case of Esha Bhattacharya Vs. Managing Committee of Raghunathpur Nafar Academy and Others, reported in (2013) 12 SCC 649, the Apex Court has held as under:-

"21.From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

2.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

In light of the principles as extracted above, it would be seen that the word "sufficient cause" has to be liberally construed and has to be given a pragmatic interpretation.

17. Having considered the aforesaid and taking note of the averments made by the appellant in his affidavit where he has sought to explain the cause for delay and it is also to be noticed that while examining a cause, a practical approach has to be adopted rather than to adopt a pedantic view.

18. In the aforesaid facts and circumstances, where the delay has been explained and apart from the bald denial, there is nothing on record to indicate that the cause as indicated by the appellant is effectuated by malafides, hence, relying upon the ratio of the decisions rendered by the Apex Court in the case of Ram Nath Sao (supra) wherein it has been clearly held that every explanation which is furnished unless shown to be effectuated by malafides, should be accepted.

19. Taking a holistic view, this Court is of the view that the Appellate Tribunal has committed an error in rejecting the application for condonation of delay in the facts and circumstances.

20. Noticing the aforesaid, the impugned order passed by the Appellate Tribunal is set aside. The delay shall stand condoned. The appeal shall restored before the Appellate Tribunal. The parties shall appear before the Court on 19th December, 2022 and the Appellate Tribunal after affording an opportunity of hearing to the parties shall decide the appeal preferrably within a period of three months.

21. The appeal is allowed in the aforesaid terms on a cost of Rs. 15,000/- which shall be paid by the petitioner to the respondent within a period of 10 days from today.

(Jaspreet Singh, J.)

Order Date :- 06.12.2022

Asheesh