Sumathi vs T Sreeramulu
2022 Latest Caselaw 2059 AP

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                        I.A.No.1 of 2021
                              IN/AND
                 SECOND APPEAL No.281 of 2021

JUDGMENT:

Defendants in the suit filed the above second appeal.

Respondent/plaintiff filed suit O.S.No.300 of 2005 on the file of

Additional Senior Civil Judge, Chittoor, and seeking partition of

plaint schedule properties.

2. Pleadings, in brief, germane to decide this interlocutory

application, are that the plaintiff is son of T.Raghunatha

Naicker, through his first wife T.Lakshmamma, who left the

company of T.Raghunatha Naicker and married one

Munaswamy Naicker and has been residing with him in

Tamilnadu. T.Raghunatha Naicker married 2nd defendant and

begot 1st defendant through her. According to plaintiff, plaint

schedule properties are joint family properties, and he is entitled

to share in the said properties. According to 1st defendant,

T.Raghunatha Naicker during his life time executed Ex.B-1

registered gift deed dated 29.05.2000 and she accepted the gift

and she has been in possession.

3. Trial Court by judgment dated 30.08.2013 dismissed the

suit. Aggrieved by the same, plaintiff filed A.S.No.9 of 2015 on

the file of VIII Additional District Judge, Chittoor. The Lower

Appellate Court by judgment dated 09.01.2018 allowed the

appeal and passed preliminary decree. Assailing the said

judgment and decree, the above second appeal is filed with a

delay of 706 days.

4. In the affidavit filed in support of the petition, appellants

contended that though Lower Appellate Court pronounced

judgment on 09.01.2018, there was no communication to them

from their counsel regarding judgment, since they are not

residing in the village for some time; that after noticing the steps

taken by the respondents for measuring the schedule

properties, they enquired their counsel and came to know about

the judgment of lower appellate Court; that due to Covid-19

pandemic, they could not file second appeal by engaging

counsel; that immediately after pandemic came down, they

engaged counsel and filed the above second appeal and in the

process delay of 706 days occurred.

5. This Court ordered notice to respondent on 08.07.2021.

Respondent appeared through counsel and filed counter.

6. In the counter affidavit filed by respondent, it was

contended that pursuant to preliminary decree, I.A.No.428 of

2019 in O.S.No.300 of 2005 on the file of Additional Senior Civil

Judge, Chittoor, was filed for passing of final decree. When the

learned Advocate Commissioner issued notice to inspect the

warrant schedule property on 21.03.2020 at 9.30 a.m., the 1st

appellant (1st defendant) herein gave memo requesting the

Advocate Commissioner to postpone the execution of warrant on

the ground that her counsel went to Apollo Hospital, Chennai

for check up. Thus, respondent prayed to dismiss I.A.

7. As can be seen from the certified copy of judgment in

A.S.No.9 of 2015, Lower Appellate Court pronounced the

judgment on 09.01.2018. Application to get certified copy was

filed on 10.06.2021, after 3 years 5 months. The explanation

offered by the appellants that there was no communication

about the judgment of the appellate Court and they are not

residing in the village for some time is not true and correct in

the light of 1st appellant giving memo to the advocate

commissioner on 23.01.2020, when he visited the schedule

properties in final decree proceedings in I.A.No.428 of 2019.

8. Appellants, on oath, made false statement and are praying

the Court to condone the delay of 706 days in filing the appeal.

In fact, as can be seen from the record, judgment of the lower

appellate Court was pronounced on 09.01.2018 and application

to get certified copy was filed on 10.06.2021, thus delay in filing

appeal should be 1255 days. However, the delay was restricted

to 706 days by virtue of order passed by the Hon'ble Apex Court

suspending limitation from 23.03.2020 in view of Covid-19

pandemic.

9. While considering the application for condonation of delay,

the Court has to see whether the delay is inordinate or delay is

few days and that reasons assigned are valid and cogent. Party

seeking condonation of delay needs to explain the delay

properly, the grounds which are reasonable and plausible.

10. In N.Balakrishnan Vs. M.Krishnamurthy1 the Hon'ble

Apex Court held thus:

"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 uncontainable due to want of acceptable explanation whereas in certain other cases delay of 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 regional 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 reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.

11. 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.

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

(1998) 7 SCC 123

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, MANU/SC/0335/1968 : [1969]1SCR1006 and State of West Bengal v. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972] 2 SCR 874.

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 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 a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

11. In Balwant Singh (dead) v. Jagdish Singh and Ors.2

after referring to earlier case law, the Hon'ble Apex Court held at

paragraphs 24 and 25 as under;

"We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.

The law of limitation is a substantive law and has definite consequences on the right and obligation of a

(2010) 8 SCC 685

party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

12. In Maniben Devraj Shah v. Municipal Corporation of

Brihan Mumbai3, the two-Judge Bench of the Hon'ble Apex

Court held as under:

"What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statues, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the costs. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."

(2012) 5 SCC 157

Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years."

13. In Esha Bhattacharjee Vs. Managing Committee of

Raghunathpur Nafar Academy4, the Hon'ble Apex Court

broadly culled out the following principles:

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.

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.

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

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.

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

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.

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

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

(2013) 12 SCC 649

strict approach whereas the second calls for a liberal delineation.

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.

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.

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.

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

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

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

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard 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.

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.

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.

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

14. As seen from the judgments refered to supra, the Hon'ble

Apex Court observed that length of delay is no matter,

acceptability of the explanation is the only criterion. It was

further held that the primary function of a Court is to adjudicate

the dispute between the parties and to advance substantial

justice. Rule of limitation are not meant to destroy the rights of

parties and they are meant to see that parties do not resort to

dilatory tactics, but seek their remedy promptly. Hon'ble Apex

Court also cautioned that if the delay is occasioned by party

deliberately to gain time then the Court should lean against

acceptance of the explanation. The explanation should not be

fanciful and concocted. The Courts while dealing with an

application to condone delay should keep in mind the right

accrued to other side and should deal with such application

with utmost care.

15. Petitioners in the affidavit filed in support of the petition

averred that they are not aware of pronouncement of judgment

by the Lower Appellate Court and they came to know about the

same, when respondent took steps to measure the properties.

They also averred that they are not residing in the village for

some time. Against the said averments, in the counter affidavit

filed by respondent, it was averred that 1st appellant, in fact,

gave a memo to the advocate commissioner on 23.01.2020,

when he visited the properties in connection with final decree

proceedings. In view of the same, it can be deduced that 1st

appellant is aware of judgement and decree of the lower

appellate Court in the appeal; filing petition by respondent vide

I.A.No.428 of 2019 to appoint advocate commissioner to pass

final decree by dividing the schedule properties and notice

issued by the advocate commissioner. The appellants for the

reasons best known did not get the certified copy to file appeal

immediately.

16. Having filed memo before Advocate Commissioner, the

appellants applied to get certified copy of judgment on

10.06.2021, nearly after one year four months and they could

get the certified copy on 11.06.2021, very next day.

17. The affidavit filed in support of the petition to condone the

delay does not offer valid explanation to condone inordinate

delay of 706 days and in fact, it is only to protract the further

proceedings. Hence, I.A.No.1 of 2021 is dismissed.

18. Consequently, the second appeal is dismissed. No order

as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 27th April, 2022

PVD