Jharkhand High Court
Nilam Devi vs Manoj Kumar Saha on 12 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 101 of 2024
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Nilam Devi ....... ... Appellant
Versus
Manoj Kumar Saha ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Ranjan Kumar Singh, Adv.
For the Respondent : Mr. Diwakar Jha, Adv.
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th
Order No.06/Dated: 12 June, 2025
I.A No.6010 of 2024
1. The present interlocutory application has been filed under section 5 of
the Limitation Act, 1963 for condonation of delay of about 317 days in
preferring First Appeal No.101 of 2024.
2. This Court vide order dated 24.04.2025 has called for the Trial Court
Records in order to assess the reason assigned in the instant interlocutory
application wherein it was stated that the impugned judgment is an ex-
parte and, as such, the appellant-wife had no knowledge about the same.
3. In pursuance to issuance of notice vide order dated 23.10.2024 of this
Court the respondent-husband has put his appearance through
Mr. Diwakar Jha, the learned counsel who has opposed the application
for condonation of delay.
4. This Court has gone through the Trial Court Records, a copy of which
has been supplied to the learned counsel for the respondent-husband who
has also gone through the same.
5. We have heard the learned counsel for the parties on the application for
condonation of delay.
6. The reason has been assigned at paragraph nos.5 and 6 of the application
for condonation of delay wherein it has been stated that the impugned
judgment being ex-parte the appellant-wife had no knowledge about the
same. When the appellant came to know about the said judgment in the
last week of February, 2024, she immediately enquired about the facts
and thereafter she applied to obtain the certified copy of the impugned
judgment on 02.03.2024 and after getting the copy she contacted her
learned counsel on 08.04.2024 and on his advice, she preferred the
instant appeal due to which delay of about 317 days in filing the instant
appeal has been caused. Hence, a prayer has been made that the learned
Family Court has passed the impugned judgment ex-parte for dissolution
of marriage of the parties herein and, as such, if such delay will not be
condoned, the appellant-wife will suffer irreparable loss and injury as it
is a question of dissolution of marriage which also includes the issue of
permanent alimony etc.
7. The learned counsel appearing for the respondent-husband, however, has
made serious objection to such prayer by referring paragraph no.3 of the
impugned judgment wherein the learned Family Judge has taken into
consideration the issue of non-appearance of the appellant-wife by
recording the fact that the plaintiff-husband filed an undertaking on
01.12.2022 to the extent that "the service of notice has been received by
the defendant and he filed the acknowledgment of notice issued by the
Borio Post Office".
8. The said undertaking has been taken into consideration by the learned
Family Judge and he came to a conclusion that the notice has validly
been served upon the appellant-wife but she chose not to appear and,
accordingly, the case was fixed ex-parte hearing against the appellant-
wife vide order dated 01.12.2022. Hence, the ground which has been
shown in the application for condonation of delay cannot be said to be
based upon the record, rather, the same is contrary to the order dated
01.12.2022 and, as such, the present application is fit to be dismissed.
9. Heard the learned counsel for the parties and gone through the ground
assigned in the application for condonation of delay as also we have
considered the argument advanced on behalf of the learned counsel
appearing for the respondent-husband.
10. We have also gone through the Trial Court Records in order to come to
the conclusion as to whether the reason which has been assigned in the
instant interlocutory application for condonation of delay is considered to
be sufficient cause. We have heard the learned counsel for the appellants
on delay condonation application and before considering the same, this
Court, deems it fit and proper to refer certain legal proposition as has
been propounded by the Hon'ble Apex Court with respect to the
approach of the Court in condoning the inordinate delay.
11. There is no dispute about the fact that generally the lis is not to be rejected
on the technical ground of limitation but certainly if the filing of appeal
suffers from inordinate delay, then the duty of the Court is to consider
the application to condone the delay before entering into the merit of the
lis.
12. It requires to refer herein that the Law of limitation is enshrined in the
legal maxim interest reipublicae ut 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, rather the idea is that every
legal remedy must be kept alive for a legislatively fixed period of time, as
has been held in the judgment rendered by the Hon'ble Apex Court in
Brijesh Kumar & Ors. Vrs. State of Haryana & Ors., (2014) 11 SCC
351.
The Privy Council in General Accident Fire and Life Assurance
Corpn. Ltd. v. Janmahomed Abdul Rahim, (1939-40) 67 IA 416, relied
upon the writings of Mr. Mitra in Tagore Law Lecturers, 1932, wherein, it
has been said that:
"A Law of limitation and prescription may appear to
operate harshly and unjustly in a particular case,
but if the law provides for a limitation, it is to be
enforced even at the risk of hardship to a particular
party as the Judge cannot, on equitable grounds,
enlarge the time allowed by the law, postpone its
operation, or introduce exceptions not recognized by
law."
13. In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556, the
Hon'ble Apex Court while considering a case of condonation of delay of
565 days, wherein no explanation much less a reasonable or satisfactory
explanation for condonation of delay had been given, held at paragraph-6
as under:
"6. Law of limitation may harshly affect a
particular party but it has to be applied with all
its rigour when the statute so prescribes and the
courts have no power to extend the period of
limitation on equitable grounds."
While considering the similar issue, this Court in Esha Bhattacharjee v.
Raghunathpur Nafar Academy, (2013) 12 SCC 649, wherein, it has
been held as under:
"21.5 (v) Lack of bona fides imputable to a
party seeking condonation of delay is a
significant and relevant fact.
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.
21.9. (ix) the conduct, behavior 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.
22.4. (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."
14. It also requires to refer herein that what is the meaning of 'sufficient
cause'. The consideration of meaning of 'sufficient cause' has been
made in Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer, [(2013)
14 SCC 81], wherein, it has been held by the Hon'ble Apex Court at
paragraphs 9 to 15 hereunder:-
"9. Sufficient cause is the cause for which the defendant
could not be blamed for his absence. The meaning of the
word "sufficient" is "adequate" or "enough", inasmuch as
may be necessary to answer the purpose intended. Therefore,
the word "sufficient" embraces no more than that which
provides a platitude, which when the act done suffices to
accomplish the purpose intended in the facts and
circumstances existing in a case, duly examined from the
viewpoint of a reasonable standard of a cautious man. In this
context, "sufficient cause" means that the party should not
have acted in a negligent manner or there was a want of
bona fide on its part in view of the facts and circumstances of
a case or it cannot be alleged that the party has "not acted
diligently" or "remained inactive". However, the facts and
circumstances of each case must afford sufficient ground to
enable the court concerned to exercise discretion for the
reason that whenever the court exercises discretion, it has to
be exercised judiciously. The applicant must satisfy the court
that he was prevented by any "sufficient cause" from
prosecuting his case, and unless a satisfactory explanation is
furnished, the court should not allow the application for
condonation of delay. The court has to examine whether the
mistake is bona fide or was merely a device to cover an
ulterior purpose. (See Manindra Land and Building Corpn.
Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] , Mata
Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC
1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC
(Civ) 1 : AIR 2011 SC 1150] and Maniben Devraj
Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC
157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629] .)
10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993]
this Court explained the difference between a "good cause"
and a "sufficient cause" and observed that every "sufficient
cause" is a good cause and vice versa. However, if any
difference exists it can only be that the requirement of good
cause is complied with on a lesser degree of proof than that
of "sufficient cause".
11. The expression "sufficient cause" should be given a
liberal interpretation to ensure that substantial justice is
done, but only so long as negligence, inaction or lack of bona
fides cannot be imputed to the party concerned, whether or
not sufficient cause has been furnished, can be decided on the
facts of a particular case and no straitjacket formula is
possible.
(Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR 2002
SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC
195 : AIR 2002 SC 1201] .)
12. It is a settled legal proposition that law of limitation may
harshly affect a particular party but it has to be applied with
all its rigour when the statute so prescribes. The court has no
power to extend the period of limitation on equitable
grounds. "A result flowing from a statutory provision is
never an evil. A court has no power to ignore that provision
to relieve what it considers a distress resulting from its
operation." The statutory provision may cause hardship or
inconvenience to a particular party but the court has no
choice but to enforce it giving full effect to the same. The
legal maxim dura lex sed lex which means "the law is hard
but it is the law", stands attracted in such a situation. It has
consistently been held that, "inconvenience is not" a decisive
factor to be considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its
aim being to secure peace in the community, to suppress
fraud and perjury, to quicken diligence and to prevent
oppression. It seeks to bury all acts of the past which have
not been agitated unexplainably and have from lapse of time
become stale. According to Halsbury's Laws of England, Vol.
28, p. 266:
"605. Policy of the Limitation Acts.--The courts have
expressed at least three differing reasons supporting the
existence of statutes of limitations namely, (1) that long
dormant claims have more of cruelty than justice in them, (2)
that a defendant might have lost the evidence to disprove a
stale claim, and (3) that persons with good causes of actions
should pursue them with reasonable diligence."
An unlimited limitation would lead to a sense of
insecurity and uncertainty, and therefore, limitation prevents
disturbance or deprivation of what may have been acquired
in equity and justice by long enjoyment or what may have
been lost by a party's own inaction, negligence or laches.
(See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7
SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705
: AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon
Medium Project [(2008) 17 SCC 448]
14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4
SCC 578 ] this Court held that judicially engrafting
principles of limitation amounts to legislating and would fly
in the face of law laid down by the Constitution Bench
in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225].
15. The law on the issue can be summarised to the effect that
where a case has been presented in the court beyond
limitation, the applicant has to explain the court as to what
was the "sufficient cause" which means an adequate and
enough reason which prevented him to approach the court
within limitation. In case a party is found to be negligent, or
for want of bona fide on his part in the facts and
circumstances of the case, or found to have not acted
diligently or remained inactive, there cannot be a justified
ground to condone the delay. No court could be justified in
condoning such an inordinate delay by imposing any
condition whatsoever. The application is to be decided only
within the parameters laid down by this Court in regard to
the condonation of delay. In case there was no sufficient
cause to prevent a litigant to approach the court on time
condoning the delay without any justification, putting any
condition whatsoever, amounts to passing an order in
violation of the statutory provisions and it tantamounts to
showing utter disregard to the legislature."
15. This Court on the basis of the aforesaid legal proposition and in order to
come to the conclusion that as to whether the appellant-wife has been
able to show the cause said to be sufficient in condoning the delay has
gone through the Trial Court Records. This Court has also gone through
the paragraph no.3 of the impugned judgment wherein the reference of
the order dated 01.12.2022 has been made by which the learned Family
Judge has posted the matter for ex-parte hearing on consideration of the
fact that the respondent-husband has filed an undertaking along with the
certificate of the concerned Post Office showing the service of notice
said to be received by the appellant-wife. The same has been considered
to be a ground for posting the matter for ex-parte hearing.
16. This Court has also gone through the order since beginning, i.e, the day
when the divorce suit being Original Suit No.60 of 2022 was admitted
and notice was issued to the appellant-wife vide order dated 28.06.2022.
Thereafter, the proceeding of the original suit was waited for service
report and appearance of appellant-wife. It appears that on 26.08.2022
the service report was not available and, as such, the matter was posted
by the learned Family Judge on 19.09.2022. The order dated 19.09.2022
also reflects that the service of notice was not received and, hence, for
waiting the same the matter was posted on 16.11.2022. It also appears
from the order dated 16.11.2022 that the service report was not received
till that day and, hence, the matter was posted on 01.12.2022.
17. On 01.12.2022 the plaintiff-husband has appeared and filed an
undertaking along with the certificate of the concerned Post Office
showing the service of notice said to be served upon the appellant-wife.
18. The learned Family Judge based upon the aforesaid undertaking and the
certificate of the concerned Post Office has posted the matter for ex-parte
hearing.
19. From the order dated 26.08.2022 upto the order dated 16.11.2022 the
service report was not received by the Court having not available on
record but the access was given to the plaintiff by accepting the
application said to be an undertaking along with the certificate of the
Borio Post Office in support of service said to be received by the
appellant-wife.
20. But this Court is of the view that while accepting the same and taking
note in the order dated 1.12.2022 before posting the matter for ex-parte
hearing, it was the bounded duty of the learned Family Judge to ascertain
itself as to whether the notice has effectively been served upon the
appellant-wife or not.
21. It further appears from the order dated 28.6.2022 the day, when the
notice was issued while admitting the suit and the direction was upon the
plaintiff-husband to file necessary requisites within a week. On doing so
the Office Clerk was directed to issue summons upon the appellant-wife
but it is not evident from the order dated 28.6.2022 as to whether the
summons which was directed to be issued on the basis of the order of
issuance of notice was through the registered post or the ordinary
process. The bearing of the said reference is necessary in view of the
acceptance of the submission of the respondent-husband who has given
an undertaking along with the certificate of the Borio Post Office.
22. The question is that when there is no reference of the notice to be issued
through the registered mode and, as such, for what reason such certificate
has been given by the Borio Post Office and that has been accepted by
the learned Family Judge. It requires to refer herein that even accepting
the fact that there is no reference of registered mode and if the notice has
been issued summoning the appellant-wife, even if it will be presumed
that the same will be presumed to be issued under the ordinary process
and the mode of service of notice through the special messenger and in
that context there is no need to have a certificate to be issued by the
concerned Post Office.
23. The learned Family Judge has not taken into consideration the aforesaid
aspect of the matter while accepting the notice said to be served upon the
appellant-wife before posting the matter ex-parte.
24. In view of the above, this Court is of the view that the reason of posting
the matter ex-parte hearing after giving a reasoning that even after
service of notice the appellant-wife has not appeared in that proceeding
cannot be said to be proper.
25. This Court, therefore, is further of the view that the reason which has
been assigned in the instant interlocutory application showing the said
reason to be sufficient cause for condonation of delay is held to be
sufficient one to condone the delay.
26. Accordingly, I.A No.6010 of 2024 is allowed and delay of 317 days in
preferring First Appeal No.101 of 2024 is hereby condoned.
27. I.A. No.6010 of 2024 stands disposed of.
28. As prayed for by the learned counsel appearing for the parties, let the
matter be posted on 19.06.2025 for hearing on merits.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Sudhir
