Smt. Santosh And Ors. vs Shri Tek Chand
2006 Latest Caselaw 1233 Del

JUDGMENT

Gita Mittal, J.

I.A. Nos. 5992 and 5993/2005

1. I.A. No. 5993/2005 has been filed by Smt. Maya Chauhan, plaintiff No. 2 in the present suit under the provisions of Section 5 of the Limitation Act, 1963 praying for condensation of delay in filing of I.A. No. 5992/2005 whereby restoration of the suit which was dismissed for default of appearance has been sought.

2. Inasmuch as the facts and reasons for condensation of delay and for restoration of the suit are identical, these applications are taken up together.

3. Four sisters as plaintiffs have filed the present suit seeking partition of property which was claimed as ancestral property as well as for rendition of accounts. It has been stated that Smt. Santosh, plaintiff No. 1 was prosecuting that matter on behalf of all the sisters. The suit was initially filed in the district court but was transferred to the High Court of Delhi. Counsel who was engaged to handle the matter before the district court had expressed inability to pursue the case and consequently the plaintiffs were compelled to change the counsel. The counsel who was then engaged by the plaintiffs also expressed difficulty in pursuing the present matter. As the plaintiff No. 1 had advised that she was having good contact with the advocate, at her instance, the plaintiff had agreed and also engaged Shri R.S. Malik and Shri Rajbir Singh as counsels on the plaintiff's behalf. These counsels had filed vakalatnama on the 21st of February, 2003. However, even though the matter was listed on that day, for reasons not known to the applicant, the counsels failed to put in appearance. The applicant/plaintiff No. 2 had been informed by her sister Smt. Santosh, plaintiff No. 1 that the new counsel would adequately represent their interest and she would be pursuing the matter with them with regard to the status of the case and steps to be taken in the case. As such, in the bona fide belief that the counsel and plaintiff No. 1 would pursue the matter and the applicant would be informed as and when any steps were to be taken by her, the applicant had left the responsibility of prosecution of the day to day hearing to her sister and the counsel. Despite this assurance, the applicant has stated that Smt. Santosh, plaintiff No. 1 left for a foreign destination without informing the applicant. The applicant also has received no information with regard to the status of the case from the counsel who had been engaged by Smt. Santosh, plaintiff No. 1. It was only in the first week of July, 2005 when the plaintiff No. 2 visited the village where the suit property was located that she learnt from the villagers that Smt. Kanta Devi, the legal representative of defendant No. 1 was attempting to sell the property on the ground that she had won the case which had been filed by the plaintiffs before this Court. The applicant made immediate efforts to contact Mr. R.S. Malik, Advocate in which attempt she failed. Upon enquiries, the applicant further learnt that Smt. Kanta Devi had withdrawn the amount deposited in the bank in the form of fixed deposit receipt.

4. Consequently, the plaintiff immediately engaged present counsel. It is after change of counsel by the applicant that she gained information that the suit was dismissed for default of appearance on the 14th January, 2004. The application seeking restoration of the suit and the present application for condensation of delay was drafted immediately on or about the 19th July, 2005. The applicant has stated that delay in filing of the application was only for the reason that the applicant was under the bona fide belief and impression that the suit was being conducted by the counsel and pursued on behalf of the plaintiffs by the plaintiff No. 1. The applicant has pleaded that she was not aware of the proceedings and the dismissal of the case and having engaged counsel to prosecute her case, she bona fide believed that her interest was safe and secure. She submits that she was not negligent in any manner.

5. The application has been opposed on behalf of the defendants for the reason that the plaintiff has failed to explain the delay in filing of the application and that the reason given do not show the sufficient cause for the non-appearance on the 14th of January, 2004 and consequently the order directing dismissal of the suit in default of appearance deserves to be maintained.

6. It is further contended that the delay in filing of application prejudices the defendants and that the application is not bona fide.

7. It is well settled that the rules of procedure are handmaiden to the ends of justice and should not be permitted to effect substantial justice. The defendant has placed reliance on the pronouncement of the apex court in 2001 (1) RCR (Civil) 242 entitled P.K. Ramachandran v. State of Kerala whereby the apex court has reiterated the well settled principles of law that if the applicant fails to give reasonable or satisfactory reasons for condensation of delay, the High Court would be justified in refusing to exercise discretion to condone the delay in making the application. Reliance has also been placed on 2001 (1) RCR (Civil) 124 entitled Balram Tiwari v. Regional Transport Authority, Varanasi Region, wherein the application seeking condensation of delay was rejected as there was no sufficient explanation for the ordinary delay in moving the application for the purpose.

8. The judgment reported in 2000 (1) RCR Civil 384 entitled Melo Rani v. Dalip Singh placed by the defendant before this Court was also rendered in the facts and circumstances of the case and does not lay down any principle of law.

9. My attention has been drawn to entitled N. Balakrishnan v. M. Krishnamurthy. The manner in which the discretion to condone the delay is to be exercised and guidelines in respect thereof were laid down by the Apex Court in this authoritative and binding precedent. In this case, the High Court held that the appellant had failed to explain as to why he did not meet his advocate for a long period resulting in the delay and for this reason, it was held that the party had been negligent and could not be permitted to blame the counsel.

In the appeal to the Apex Court assailing the decision of the High Court, the Apex Court held thus:

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 condensation 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 untrammelled by the conclusion of the lower court.

10. Before this Court, there is no dispute that dismissal in default would not preclude the plaintiffs from bringing a fresh suit on the same subject matter as in the present case. The defendants have also not asserted any bar on account of limitation or otherwise in case a fresh suit was brought. The explanation given by the plaintiff for the delay in making the application for restoration and also the reasons given to explain the delay for the absence does not reflect any mala fide on the part of the plaintiff/applicant herself. The record bears out the fact that the counsels were changed on three occasions and further that a counsel engaged by plaintiff No. 2 filed vakalatnama in the registry on the very day when the matter was listed but did not put in appearance in the case. The plaintiffs are all ladies and the plaintiff No. 2/applicant is a resident of Ghaziabad. I see no reason to disbelieve her statement that the case was being pursued by one out of the four sisters who are plaintiffs before this Court. Such conduct is normal in suits of the nature as the present where the plaintiffs are asserting rights in their father's property. One or the other of the plaintiffs is always permitted to take the initiate to pursue the case.

In these circumstances, I do not find any mala fide on the part of the plaintiff in approaching the court late.

11. The apex court in entitled State of Jammu and Kashmir v. Dr. Ashok Kumar Gupta and Ors. held that a pragmatic approach deserves to be adopted and the explanation for the delay needs to be considered so as to advance the cause of justice. The consideration by the Court would be so angulated and accordingly delay has to be considered from the perspective of advancing the interest of justice.

12. It was towards this objective that in entitled M.K. Prasad v. P. Arumugam, the apex court held that even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. The court held that the appellant should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable.

In this judgment, the apex court laid down the principle that while deciding the application for setting aside the ex parte decree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. The inconvenience caused to the respondent for the delay on account of the appellant being absent from the court was held to be compensated by awarding appropriate and exemplary costs.

13. The apex court has repeatedly held that the primary function of the court is to adjudicate the dispute between the parties and to advance substantial justice. In entitled N. Balakrishnan v. M. Krishnamurthy (supra) the Apex Court held that the time limit fixed for approaching the court in different : AIR 1967 SC 691situations 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 rights of the parties. It was therefore stated 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.

14. The condensation of delay in making an application beyond the prescribed period is permitted under Section 5 of the Limitation Act, 1963. Such delayed application may be entertained if the applicant satisfies the court that he had 'sufficient cause' for not making the application within such period.

15. In AIR 2002 SC 1201 entitled Ram Nath Sahu and Ors. v. Gobardhan Sahu and Ors., the court places reliance on the earlier pronouncement of the court in entitled State of West Bengal v. Administrator, Howrah Municipality to hold that the expression 'sufficient cause' within the meaning of Section 5 of the Limitation Act, 1963 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.

16. So far as consideration of the application explaining the reasons for the delay is concerned, in entitled S.S. Builders v. Sita Rani Ahuja (supra) after placing reliance on several pronouncements of the apex court, it was concluded that an applicant is not required to explain each day's delay individually. Rather if reading the explanation given by him as a whole makes out sufficient cause which prevented him from attending hearing of the case when suit was dismissed in default, the court adopting a pragmatic approach and not a narrow view should allow the parties to get their dispute decided on merit and not shut out a party by adopting a hypertechnical approach.

17. In view of the above considerations and having regard to the well settled principles of law as laid down in the binding judicial precedents noted above, it has to be held that the applicant/plaintiff has shown sufficient cause within the meaning of Section 5 of the Limitation Act, 1963 for condensation of delay in filing I.A No. 5992/2005. However, inasmuch as the application is admittedly delayed and the contesting defendants were put to an inconvenience and delay has been occasioned in the trial which may require further expenses on litigation by the defendants, the plaintiff is required to pay costs to the defendants.

This application is therefore allowed subject to payment of Rs. 6,000/- as costs.

Accordingly, delay in filing I.A. No. 5992/2005 seeking setting aside of the dismissal of the suit in default is condoned. The costs shall be apportioned equally between the plaintiff and the National Legal Aid Fund (NALSA). The same shall be deposited within a period of two weeks from today. The proof of payment of costs shall be placed before this Court thereafter.

The registry shall send intimation of this direction to the National Legal Aid Fund (NALSA).

18. The plaintiff has filed I.A. No. 5992/2005 seeking setting aside of the order dated 14th January, 2004 whereby the suit was dismissed for default of appearance. This application has been filed for reasons and on grounds which are identical to those set out in I.A. No. 5993/2005. Detailed reasons have been recorded herein above as to the sufficiency of the reasons laid down by the plaintiffs for condensation of the delay in filing this application. For the observations herein above made, I am satisfied that the applicant has shown sufficient cause for non-appearance on 14th January, 2004.

I.A. No. 5992/2005 is hereby allowed.

Accordingly, the order dated 14th January, 2004 is hereby recalled and the suit is restored to its original position.