Vijaya Gupta & Ors vs Kamal Kumar Gupta & Ors
2024 Latest Caselaw 10481 HP

Himachal Pradesh High Court

Vijaya Gupta & Ors vs Kamal Kumar Gupta & Ors on 29 July, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMP(M) No. 427 of 2023 in C.R. No. 108 of 2024 Decided on 29.07.2024.

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Vijaya Gupta & Ors. ....Petitioners

Versus Kamal Kumar Gupta & Ors .... Respondents ____________________________________________________________ Coram

Ms. Justice Jyotsna Rewal Dua

lWhether approved for reporting?

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For the petitioners: Mr.Tara Singh Chauhan, Advocate.

For the respondents: Mr. G.R.Palsra, Advocate, for respondents No.1, 2, 3(b) and 3(C) Remaining respondents proceeded

against ex-parte on 12.06.2023.

Jyotsna Rewal Dua, Judge

CMP(M) N. 427 of 2023

The applicants seek condonation of delay in

moving the Civil Revision Petition.

2. The order impugned was passed by the learned

First Appellate Court on 18.12.2021. As per the averments

made in the application, copy of order was applied on

l Whether reporters of Local Papers may be allowed to see the judgment? Yes

27.12.2021; The same was received by the applicants on

01.01.2022; However, the Civil Revision Petition was

instituted on 21.11. 2022. There is delay of 176 days in the

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institution of the Civil Revision Petition.

3. The reasons for delay assigned by the applicants

as canvassed by their learned counsel are that :- Petitioners

No.2 and 3 were not directly pursuing the case; The case was

being pursued by their mother Smt. Vijaya Gupta-petitioner

No.1; Petitioner No.1 was residing r with her son (petitioner

No.2) at the relevant time at the place of his posting; On

account of an accidental fall, petitioner No.1 suffered serious

injuries on her neck and backbone; Consequently, petitioner

No.1 continued to remain with her son at his place of posting;

COVID-19 Pandemic was there during the period in question

and movements were also restricted. On account of aforesaid

reasons, delay had occurred in instituting the Civil Revision

Petition.

4. On being put to notice, only respondents No.1, 2,

3(b) and 3(c) appeared and opposed the application. The

remaining respondents were proceeded against ex-parte. The

appearing respondents denied the averments made by the

applicants in the application. The pleaded fact that petitioner

No.1 suffered a fall and consequent injuries was also denied.

According to the appearing respondents, benefit of COVID-19

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Pandemic cannot be availed by the applicants as limitation

extended by the Hon'ble Apex Court on account of COVID-19

Pandemic ended on 01.03.2022. Learned counsel for the

appearing respondents submitted that no cogent reason has

been assigned by the applicants for not instituting the Civil

Revision Petition after expiry of the extended limitation

provided in view of COVID-19 Pandemic.

5. Having heard learned counsel on both sides and

on considering the case file, in particular, the order passed by

the learned First Appellate Court on 18.12.2021, which is

impugned in the main petition, I am inclined to condone the

delay in instituting the Civil Revision Petition.

Learned counsel for the appearing respondents

has not refuted that it was petitioner No.1, who was pursuing

the case. Petitioner No.1 is around 67 years of age. The

order impugned in the Civil Revision Petition was pronounced

on 18.12.2021. Admittedly, the period in question

corresponded with the COVID-19 Pandemic duration.

Hon'ble Apex Court in its order dated 10.01.2022 passed in

Suo Motu Writ Petition (C) No.3 of 2020, has held as under:-

"5. Taking into consideration the arguments advanced by

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learned | counsel and the impact of the surge of the virus

on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of

the M.A. No. 21 of 2022 with the following directions:

(I) The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated

08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes r of limitation as may be prescribed under any

general or special laws in respect of all judicial or quasi- judicial proceedings.

(II) Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become

available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till

28.02.2022. notwithstanding the actual balance

period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period

of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the

Commercial Courts Act, 2015 and provisos (b) and

(c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits

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(within which the court or tribunal can condone

delay) and termination of proceedings."

In view of Clause (III) of above order, the

limitation period in the instant case would have lapsed 90

days after 01.03.2022.

It will also be appropriate to refer to Sheo Raj

Singh (deceased) through legal representatives and

others Vs. Union of India and another 1, whereunder

following principles were culled out pertaining to applying law

of limitation:-

"35. We find that the High Court in the present case

assigned the following reasons in support of its order:

35.1 The law of limitation was founded on public policy, and that some lapse on the part of a litigant, by itself, would not be sufficient to deny condonation of delay

as the same could cause miscarriage of justice. 35.2 The expression sufficient cause is elastic enough for courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one another, the former would prevail.

(2023)10 SCC 531

35.3 It is upon the courts to consider the sufficiency of cause shown for the delay, and the length of delay is not always decisive while exercising discretion in such matters if the delay is properly explained. Further, the

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merits of a claim were also to be considered when

deciding such applications for condonation of delay. 35.4 Further, a distinction should be drawn between inordinate unexplained delay and explained delay,

where in the present case, the first respondent had sufficiently explained the delay on account of negligence on part of the government functionaries and

the government counsel on record before the Reference Court.

35.5. The officer responsible for the negligence would be liable to suffer and not public interest through the

State. The High Court felt inclined to take a pragmatic

view since the negligence therein did not border on callousness."

Taking into consideration the facts of the case,

the period in question falling during COVID-19 Pandemic

also, considering the fact that petitioner No.1 is stated to

have suffered injuries on account of a sudden fall and for that

reason had been dependent upon her son and residing with

him, in the interest of justice, it is deemed appropriate to

condone the delay in filing the Civil Revision Petition.

Accordingly, the application is allowed. Delay in

instituting the Civil Revision Petition is condoned, however

subject to costs of Rs. 15,000/-, to be paid by the applicants

to each of respondents No.1,2 and 3 or through them to their

legal representatives.

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6. With the consent of learned counsel for the

parties, matter is heard.

6(i) Grievance of the petitioners is to the order dated

18.12.2021, whereby petitioners' application under Section 5

of Limitation Act was dismissed.

6(ii) Petitioners were the plaintiffs before the learned

Trial Court. Civil Suit for declaration, permanent prohibitory

and mandatory injunction was instituted by them against the

respondents. Vide judgment and decree dated 16.12.2019,

learned Trial Court dismissed the civil suit.

6(iii) Petitioners preferred first appeal against the

aforesaid judgment and decree dated 26.02.2020. The appeal

was barred 68 days. Hence, alongwith the appeal, an

application for condoning the delay of 68 days was also

moved.

6(iv) Learned First Appellate Court declined to condone

the delay and dismissed the application on 18.12.2021.

7. Learned counsel for the petitioners contended that

the period of delay in instituting the appeal before the

learned First Appellate Court is covered by the order passed

by the Hon'ble Apex Court in Suo Motu Writ Petition (C) No.3 of

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2020 (In Re:- Cognizance for Extension of Limitation). This

position has been fairly conceded by learned counsel for the

respondents. In view of above submission of learned counsel

for the parties, it is not necessary to go into the merits of the

reasons assigned by the learned First Appellate Court for

dismissing the application. Learned First Appellate Court did

not consider the fact that limitation for the period in

question had already been covered by the Hon'ble Apex

Court in Suo Motu Writ Petition (C) No.3 of 2020 (In Re:-

Cognizance for Extension of Limitation. Hence, it has to be

held that the order dated 18.12.2021, dismissing petitioner's

application, seeking condonation of delay, is not in

consonance with law. Accordingly, the Civil Revision Petition

is allowed. Impugned order dated18.12.2021 passed by the

learned Frist Appellate Court is set aside. Delay in moving the

appeal is condoned in light of the order passed by the Hon'ble

Apex Court referred to above.

The parties through their learned counsel are

directed to appear before the learned Frist Appellate Court on

20.08.2024, when the costs, as directed above, shall be paid

by the petitioners to defendants No.1 to 3 in equal shares.

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The pending miscellaneous application(s), if any,

also stand disposed of.

Jyotsna Rewal Dua Judge

July 29, 2024 R.Atal