Gauhati High Court
Page No.# 1/7 vs On The Death Of Chandrika Prasad ... on 2 November, 2021
Page No.# 1/7
GAHC010033152019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/812/2020
ON THE DEATH OF JAGANATH PRASAD GUPTA, HIS LEGAL HEIRS
MADHURI DEVI AND 2 ORS
W/O LAGANATH PRASAD GUPTA, R/O VILL. GOBINDPUR, P.O.
KAILASHAHAR, TRIPUR, DIST. NORTH TRIPURA
2: MANOJ PRASAD GUPTA
S/O LATE JAGANATH PRASAD GUPTA
R/O VILL. GOBINDPUR
P.O. KAILASHAHAR
TRIPUR
DIST. NORTH TRIPURA
3: KINKI KUMARI GUPTA
D/O LATE JAGANATH PRASAD GUPTA
R/O VILL. GOBINDPUR
P.O. KAILASHAHAR
TRIPUR
DIST. NORTH TRIPUR
VERSUS
ON THE DEATH OF CHANDRIKA PRASAD GUPTA, HIS LEGAL HEIRS
KAMALYA DEVI AND 2 ORS
WIFE, R/O ARJYA SAMAJ ROAD, DIST. BALLIA, U.P.
2:BHRIGUNATH PRASAD GUPTA
SON
R/O ARJYA SAMAJ ROAD
DIST. BALLIA
U.P.
3:LAL BABU PRASAD GUPTA
SON
R/O ARJYA SAMAJ ROAD
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DIST. BALLIA
U.P
Advocate for the Petitioner : MR. R L YADAV
Advocate for the Respondent : MS. P BHATTACHARJEE
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 02-11-2021
Heard Mr. R. L. Yadav, learned counsel appearing for the applicants as well
as Ms. P. Bhattacharjee, learned counsel representing the respondents.
This an application under Section 5 of the Limitation Act praying for
condonation of delay of 3213 days in substituting the legal heirs of the appellant no. 1
late Jagannath Prasad Gupta.
Late Jagannath Prasad Gupta and his three brothers jointly filed the appeal
challenging the judgment and decree passed by the Civil Judge, Sr. Division,
Bongaigaon in T.A. No. 5/1999 reversing the judgment and decree passed by the Civil
Judge, Junior Division, Bongaigaon in T.S. No. 61/1994.
After filing of the appeal, the appellant Jagannath Prasad Gupta died on
27.01.2010. It has been submitted that his children used to reside in the State of Tripura
where they were doing petty business for living. The other appellants, though they
were the brothers of Jagannath Prasad Gupta, never informed his children about the
pendency of the appeal. They somehow came to know about the appeal and in the
year 2015, they filed a petition under Order 1 Rule 10(2) of the Code of Civil
Procedure praying for impleading them as appellants in place of their deceased
father Jagannath Prasad Gupta.
Thereafter, many incidents happened. In my considered opinion, those
incidents do not deserve to be mentioned herein. On one occasion, one document
had to be re-constructed. On another incident, some documents got misplaced and
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could not be found for a long time. In this way, the delay occurred.
The opposite party has pleaded that the day-to-day delay has not been
explained.
In order to buttress his point, Mr. R. L. Yadav has relied upon two judgments,
one of the Supreme Court that was rendered in Sital Prasad Saxena (dead) by Lrs. V.
Union of India and others, reported in 1985 (1) scc 163 and one of this Court rendered
in Pramod Kumar Sharma and others v. Kajori Dev and others, reported in 2018 (5)
GLT 234.
In Sital Prasad Saxena (supra), the Supreme Court has held that once an
appeal is pending in the High Court, the heirs are not expected to keep a constant
watch on the continued existence of parties to the appeal before the High Court
which has a seat far away from where parties in rural areas may be resided. The
Court further held that in a traditional rural family the father may not have informed
his son about the litigation in which he was involved and was a party. The Supreme
Court has held that the rules of procedure under Order 22 are designed to advance
justice and should be so interpreted as not to make them penal statutes for punishing
erring parties.
Paragraph 11 of Pramod Kumar Sharma (supra) is quoted as under:
"11. "Sufficient Cause" has not been defined under Section 2 of the Limitation Act, 1963. It is
difficult to lay down any hard and fast rule indicating what constitutes sufficient cause. Whether
sufficient cause has been shown or not would depend on the facts and circumstances of the case.
While deciding whether there is sufficient cause or not, a pragmatic approach has to be taken
and when technical considerations and substantial justice are pitted against one another, cause of
substantial justice deserves to be preferred. It is also to be borne in mind that the rules of
limitation are not meant to destroy or foreclose the rights of the parties. They are meant to see
that parties do not resort to dilatory tactics, but seek their remedy promptly. The expression
"Sufficient Cause" has to be given a liberal construction so as to advance substantial justice and
unless there are materials to show mala fide in not approaching the court within the period of
limitation, delay should be condoned".
I have bestowed my anxious consideration to the submissions made by the
learned counsel of both sides.
It is a settled principle of law that in an ordinary circumstance a pedantic approach
may not be advisable while dealing with a prayer for condonation of delay. But one
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must keep in mind that the conduct of the appellant / petitioner is always important
in this matter.
In New India Insurance Co. Ltd. v. Smt. Shanti Mishra (AIR 1976 SC 237), it was held by
the Supreme Court that the discretion given by Sec. 5 of the Limitation Act,1963
should not be crystallized or defined so as to convert a discretionary matter into a
rigid rule of law. The expression "sufficient cause" should receive a liberal
construction.
In Collector, Land Acquisition v. Mst. Katiji, reported in (1987) 2 SCC 107, the
Apex Court has laid down several aspects of condonation of delay: -
1. A litigant should not benefit by lodging a late appeal.
2. A refusal to condone may result in a meritorious matter being thrown
out at the very threshold and consequently, the cause of justice may be
defeated. 3. The doctrine must be applied in a rational and pragmatic
manner and a pedantic or dull approach should be avoided.
4. When substantial justice and technical considerations are pitted
against each other, the former should be given a preference over the
latter. The other side cannot claim a vested right in injustice merely
because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately or mala
fide. A litigant should not stand to benefit by resorting to delay. He
actually runs a serious risk to his cause.
6. It is not that judiciary is respected on account of its power to legalize
injustice on technical grounds but because it is capable of removing
injustice.
A similar view has been taken in N. Bal Krishnan v. M. Krishnamurthy (1998) 7 SCC 123.
The Supreme Court condoned a delay of 883 on a sufficient cause. It held that the
length of the delay is not a matter, but the acceptance of the explanation of the
delay is the only criterion. The primary function of a court is to adjudicate the dispute
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between the parties and to advance substantial justice. The rules of limitation are not
meant to destroy the rights of the parties but to see that the parties do not resort to
dilatory tactics and seek remedy for redressal of their legal injury. The Court further
held that the time limit fixed for approaching the court in different situations is not to
allow, on the expiry of such time, a bad cause to transform into a good one. Thus, it
was laid down that the law of limitation was founded on public policy.
In another judgment in State (NCT Of Delhi) vs Ahmed Jaan, reported in 2008(14)
SCC 562, the Supreme Court explained the term "sufficient cause" --
The expression "sufficient cause" is adequately elastic to enable the court 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. This Court reiterated that the expression "every day's delay
must be explained" does not mean that a pedantic approach should be made. The
doctrine must be applied in a rational common sense pragmatic manner. 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. 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. Judiciary is not respected 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 Supreme Court in Oriental Aroma Chemical vs Gujarat Indisl. Devt.Corp.& Anr,
reported in 1010(5) SCC 459, has dealt with the subject of inordinate delay as under --
The law of limitation is founded on public policy. The legislature does not prescribe
limitation with the object of destroying the rights of the parties but to ensure that they
do not resort to dilatory tactics and seek remedy without delay. The idea is that every
legal remedy must be kept alive for a period fixed by the legislature. To put it
differently, the law of limitation prescribes a period within which legal remedy can be
availed for redress of the legal injury. At the same time, the courts are bestowed with
the power to condone the delay, if sufficient cause is shown for not availing the
remedy within the stipulated time. The expression "sufficient cause" employed in
Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough
to enable the courts to apply the law in a meaningful manner which sub serves the
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ends of justice. Although, no hard and fast rule can be laid down in dealing with the
applications for condonation of delay, this Court has justifiably advocated adoption
of a liberal approach in condoning the delay of short duration and a stricter
approach where the delay is inordinate.
In Oriental Aroma Chemical's case (supra), the Supreme Court has emphasized that
whilst a liberal approach may be justified where a short period has to be condoned,
a stricter approach is called for where delay is of an inordinately long
duration.
In Improvement Trust, Ludhiana vs Ujagar Singh & Ors, reported in 2010 (6) SCC
786, has held as under -
It is pertinent to point out that unless malafide are writ large on the conduct of the
party, generally as a normal rule, delay should be condoned. In the legal arena, an
attempt should always be made to allow the matter to be contested on merits rather
than to throw it on such technalities.
In Balwant Singh (Dead) vs Jagdish Singh & Ors- reported in 2010 (8) SCC 685, the
Supreme Court again deliberated upon the phrase " sufficient cause " as under ---
"The term sufficient cause' has to receive liberal construction, it must squarely fall
within the concept of reasonable time and proper conduct of the concerned party.
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
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,
as 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.''
Reverting to the case in hand, the opposite party has not pleaded anything
when the applicants pleaded that they reside in the State of Tripura for living and
they are also financially not so sound.
Both sides of the appeal have locked horns claiming title over a property. Both
parties are close relatives and the suit property is claimed to be an ancestral
property. Therefore, there is a risk that the present applicants being the legal heirs of
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late Jagannath Prasad Gupta, might loose some property to which they might have
a legal right.
The Courts exist for administering justice to the people. Courts are not supposed
to act in a manner where some persons might suffer in justice. The delay in this case is
very big. This Court is of the opinion that measuring the size of the delay does not
have any important role while considering a prayer under Section 5 of the Limitation
Act. This Court has already clarified that they applicant has to show a sufficient cause
which is sufficient to satisfy the Court. This Court has also made it clear that sufficient
cause may be different in different circumstances. Here, the present applicants have
claimed to be residents of State of Tripura and that is the reason why their
explanation is found to be satisfactorily. This Court, therefore, holds that the applicant
has shown sufficient reasons for the delay in filing the application.
Another aspect of the matter that requires to be mentioned herein that neither
the other appellants or the respondents did not inform the Court about the demise of
late Jagannath Prasad Gupta and this Court is of the opinion that for those reasons
also, contributed to the delay in filing the appropriate application by the legal heirs of
the deceased appellant.
With the aforesaid premised reasons, the delay stands condoned.
The application under Section 5 of the Limitation Act is accordingly disposed of.
JUDGE
Comparing Assistant
