This petition under Article 227 of Constitution of India has
been filed seeking following reliefs :-
(ii) That, this Hon'ble Court may further be pleased to quash
the impugned order dated 31/07/2018 (Annexure P-1) and
impugned order dated 04/10/2012 (Annexure P-2), and further be
pleased to restore the Civil Suit No.19-A/2012 to its original
number and direct the trial court to proceed further in the Civil
Suit No.19-A/2012 in the interest of justice.
(iii) Any other relief, which this Hon'ble Court deem fit and
proper, may also be granted to the petitioner, in the interest of
justice.
2. According to learned counsel, petitioner Rajendra Singh
filed a suit for declaration and permanent injunction before the
trial court. The suit was registered as Civil Suit No.19-A/2012.
The same was dismissed in default on 04.10.2012. It is
submitted that petitioner preferred an application under Order 9
rule 9 of CPC for restoration of the civil suit which was
registered as Misc.Civil Suit No.01/2013. It was contended that
petitioner is a rustic villager and illiterate person and when he
approached the counsel to know the fate of his case, he was
informed by the counsel that same has been dismissed in default.
The learned 4th Civil Judge Class-II by order dated 28.08.2015
dismissed the application under Order 9 rule 9 of CPC.
Thereafter, Misc. Civil Appeal No.12/2016 was preferred before
learned 3rd Addl. District Judge, Narsinghpur and learned Addl.
District Judge by impugned order dated 31.07.2018 dismissed his
appeal and affirmed the order dated 28.08.2015 passed by
learned 4th Civil Judge Class-II, Narsinghpur.
3. According to learned counsel for the petitioner, the
impugned order suffers from jurisdictional error as the trial court
as well as learned appellate court have failed to exercise the
jurisdiction vested in it by not restoring the civil suit. It is
submitted that the rules and procedure are being made for doing
justice and not for doing injustice particularly when a litigant is
illiterate rustic villager. Learned counsel for the petitioner
submits that on 07.09.2012, his counsel had appeared and the
case was fixed for 04.10.2012. On 04.10.2012 counsel could not
appear as the case was not entered in his office diary. When on
11.04.2013, the petitioner contacted to the counsel then he was
informed about dismissal of the suit in default. It is contended
that the impugned orders passed by the courts below are against
the settled position of law. Placing reliance on Ankur Sharma
Vs. Banmali Sharma and others-2018(3) MPLJ 411 and
Salikram and others Vs. Keshav and others- 2012(1) MPLJ-93,
it is prayed that impugned orders be set aside and Civil Suit
No.19-A/2012 be restored to its original number.
4. I have heard learned counsel for the petitioner at length
and perused the record.
5. Petitioner Rajendra Singh (A.W.1) in his affidavit
furnished before the trial court deposed that his brother Virendra
Singh works as clerk in the revenue court and he has knowledge
about the dates of cases. He further admitted that Shri
R.S.S.Patel, Advocate is his brother-in-law and his brother
Virendra Singh and Shri R.S.S.Patel Advocate are neighbours
and they both have each others' mobile number. He admitted
that earlier process fees was paid by his counsel. He deposed
that he had not put his signatures on the original application. He
admitted that affidavit dated 15.04.2013 does not bear his
signatures but he cannot say as to who has put his signature on
the affidavit. He has no knowledge about the period after which
application has been filed. The learned trial court assessed his
statement and came to the conclusion that he has no knowledge
about pendency of the civil suit No.19-A/2012 (Rajendra Vs.
Harish) and about filing of restoration application.
6. Shri R.S.S.Patel Advocate (A.W.2) stated that he could not
make entry of next date in his diary on 31.07.2012 and could not
give inform to the petitioner. In cross-examination, he has
admitted that in his diary the date previous to 31.07.2012, in
front of Rajendra Vs. Harish, are not mentioned while dates of
other cases are mentioned. He admitted that the word "dismissed
on 04.10.2012" has been entered by some other pen. He further
stated that he came to know about dismissal of the suit on
12.04.2013. According to R.S.S.Patel (A.W.2) petitioner came to
him on 11.04.2013 and on 12.04.2013 he informed him about
dismissal of the suit. He has admitted that petitioner Rajendra
Singh is his relative and his brother is working as clerk in the
revenue court.
7. Learned Civil Judge, Junior Division after assessing the
material before it came to the conclusion that in the application
petitioner had made no mention about the earlier dates
31.07.2012, 07.08.2012 and 04.09.2012. In the order sheet dated
04.09.2012 it was mentioned that petitioner and his counsel did
not turn up despite repeated call. The learned trial court instead
of dismissing the suit in default fixed the case for 04.10.2012 and
when on 04.10.2012 too none appeared for plaintiff, it was
dismissed in default. However, considering the order sheets it
came to the conclusion that despite number of opportunities
petitioner failed to file process fee to summon the record. It
further held that the restoration application had to be filed within
thirty days from the date of dismissal of the suit i.e 04.10.2012
while it has been filed on 16.04.2013 i.e almost after five months
and some days. No reasons have been assigned for delay.
Therefore, applications under Order 9 rule 9 CPC read with
section 151 CPC and application under section 5 of the
Limitation Act for condonation of delay was dismissed. The
Misc.Civil Appeal filed against the order dated 28.08.2015 was
also dismissed.
8. It is apparent that an application filed by the petitioner for
restoration of the suit was drastically barred by a period of more
than 04 months and in application filed for condonation of delay,
no reasons were assigned for delay. No day to day explanation
was given for such delay. The law with regard to scope and
jurisdiction of the court in the matter of condonation of delay
under section 5 of the Limitation Act is well settled by the
Hon'ble Apex Court and the various High Courts.
9. In the case of Ramlal Vs. Rewa Coalfields Ltd.; AIR 1962
SC 361, Hon'ble the Apex Court has held as under:-
"7. In construing Section 5 (of the Limitation Act), it is
relevant to bear in mind two important considerations.
The first consideration is that expiration of the period of
limitation prescribed for making an appeal gives rise to
a right in favour of the decree- holder to treat the decree
as binding between the parties. In other words, when the
period of limitation prescribed has expired the decree-
holder has obtained a benefit under the law of limitation
to treat the decree as decree-holder by lapse of time
should not be light- heartedly disturbed. The other
consideration which cannot be ignored is that if
sufficient cause for excusing delay is shown discretion is
given to the Court to condone delay and admit the
appeal. This discretion has been deliberately conferred
on the Court in order that judicial power and discretion
in that behalf should be exercised to advance
substantial justice."
10. As regards meaning, scope and rationale of the law of
limitation, Hon'ble the Apex Court in the case of Pundlik Jalam
Patil (Dead) by LRs. Vs. Executive Enginner, Jalgaon Medium
Project and another; (2008) 17 SCC 448 has held as under :-
"26. Basically, the laws of limitation are founded on public
policy. In Halsbury's Laws of England, 4th Edn., Vol. 28, p. 266,
Para 605, the policy of the Limitation Acts is laid down as
follows:
"605. Policy of the Limitation Acts.--The courts have
expressed at least three differing reasons supporting
the existence of statutes of limitation, namely, (i) that
long dormant claims have more of cruelty than
justice in them, (ii) that a defendant might have lost
the evidence to disprove the stale claim, and (iii) that
persons with good causes of actions should pursue
them with reasonable diligence."
27. Statutes of limitation are sometimes described as
"statutes of peace". An unlimited and perpetual threat of
limitation creates insecurity and uncertainty; some kind of
limitation is essential for public order. This Court in
Rajender Singh v. Santa Singh [(1973) 2 SCC 705] has
observed: (SCC p. 712, para 18) "
18. The object of law of limitation is to prevent
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."
28. In Tilokchand Motichand v. H.B. Munshi [(1969) 1
SCC 110 : AIR 1970 SC 898 : (1969) 2 SCR 824] this
Court observed that this principle is based on the
maxim "interest reipublicae ut sit finis litium", that is,
the interest of the State requires that there should be
end to litigation but at the same time laws of limitation
are a means to ensure private justice suppressing
fraud and perjury, quickening diligence and
preventing oppression.
29. It needs no restatement at our hands that the object
for fixing time-limit for litigation is based on public
policy fixing a lifespan for legal remedy for the
purpose of general welfare. They are meant to see that
the parties do not resort to dilatory tactics but avail
their legal remedies promptly. Salmond in his
Jurisprudence states that the laws come to the
assistance of the vigilant and not of the sleepy."
11. While dealing with the scope of jurisdiction under Section
5 of the Limitation Act, as regards condonation of delay, Hon'ble
the Apex Court in the case of Lanka Venkateshwarlu (Dead) by
LRs. Vs. State of Andhra Pradesh and Others; (2011) 4 SCC
363 has observed as under:-
"19. We have considered the submissions made by the
learned counsel. At the outset, it needs to be stated that
generally speaking, the courts in this country, including
this Court, adopt a liberal approach in considering the
application for condonation of delay on the ground of
sufficient cause under Section 5 of the Limitation Act.
This principle is well settled and has been set out
succinctly in Collector (L.A.) v. Katiji [(1987) 2 SCC
107] .
xxx ... xxx..
23. The concepts of liberal approach and reasonableness
in exercise of the discretion by the courts in condoning
delay, have been again stated by this Court in Balwant
Singh [(2010) 8 SCC 685 : (2010) 3 SCC (Civ) 537] , as
follows: (SCC p. 696, paras 25-26)
"25. 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.
26. The law of limitation is a substantive law and has
definite consequences on the right and obligation of a
party to arise (sic a lis). 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."
xxx... xxx..
28. We are at a loss to fathom any logic or rationale,
which could have impelled the High Court to condone
the delay after holding the same to be unjustifiable. The
concepts such as "liberal approach", "justice oriented
approach", "substantial justice" cannot be employed to
jettison the substantial law of limitation. Especially, in
cases where the court concludes that there is no
justification for the delay. In our opinion, the approach
adopted by the High Court tends to show the absence of
judicial balance and restraint, which a Judge is required
to maintain whilst adjudicating any lis between the
parties. We are rather pained to notice that in this case,
not being satisfied with the use of mere intemperate
language, the High Court resorted to blatant sarcasms.
29. The use of unduly strong intemperate or extravagant
language in a judgment has been repeatedly disapproved
by this Court in a number of cases. Whilst considering
applications for condonation of delay under Section 5 of
the Limitation Act, the courts do not enjoy unlimited and
unbridled discretionary powers. All discretionary
powers, especially judicial powers, have to be exercised
within reasonable bounds, known to the law. The
discretion has to be exercised in a systematic manner
informed by reason. Whims or fancies; prejudices or
predilections cannot and should not form the basis of
exercising discretionary powers."
12. Hon'ble the Apex Court in the case of Maniben Devraj
Shah Vs. Municipal Corporation of Brihan, Mumbai; (2012) 5
SCC 157 has held in para 24 as under :-
"24. 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."
13. Hon'ble the Apex Court in Chief Post Master General and
Ors. Vs. Living Media India Ltd. and Another; AIR 2012 SC
1506 has held that unless reasonable and acceptable explanation
of delay and sufficient cause is shown, the application need not
be accepted.
14. Hon'ble the Apex Court in University of Delhi Vs. Union
of India and Others; (2020) 13 SCC 745 has held that in the
matter of condonation of delay and laches, the well accepted
position is also that the accrued right of the opposite party cannot
be dealt with lightly. The condonation of delay is an exception
and should be used where lapse of time is not attributable to any
laches or negligence of the appellant.
15. In the case of State of M.P. and Others Vs. M/S Perfect
Sales, Vineet Market, Jayendraganj, Lashker, Gwalior; AIR
2015 MP 161, Bench at Gwalior of this Court has held that the
appellant slept over the matter for 296 days and did nothing to
assail the judgment of the subordinate Court. It shows careless
attitude on the part of the appellant and there being no sufficient
cause shown, the delay cannot be condoned.
16. The Hon'ble Apex Court in the case of Thirunagalingam
Vs. Lingeswaran and another -Civil Appeal of 2025 arising out
of SLP(c) No.17575/2023 has held as under :-
"31. It is a well settled law that while considering the
plea for condonation of delay, the first and foremost duty of the
court is to first ascertain the bona fides of the explanation
offered by the party seeking condonation rather than starting
with the merits of the main matter. Only when sufficient cause or
reasons given for delay by the litigant and the opposition of the
other side is equally balanced or stand on equal footing, the
court may consider the merits of the main matter for the purpose
of condoning the delay.
"32. Further, this Court has repeatedly emphasised in
several cases that delay should not be condoned merely as an act
of generosity. The pursuit of substantial justice must not come at
the cost of causing prejudice to the opposing party. In the
present case, the respondents/defendants have failed to
demonstrate reasonable grounds of delay in pursuing the matter,
and this crucial requirement for condoning the delay remains
unmet."
17. In the case of Sheo Raj Singh (deceased) through Lrs.
And others Vs. Union of India and another passed in Civil
Appeal No.5867/2015 dated 09.10.2023, the Hon'ble Apex Court
held as under :-
29. Considering the aforementioned decisions,
there cannot be any quarrel that this Court has
stepped in to ensure that substantive rights of
private parties and the State are not defeated at
the threshold simply due to technical
considerations of delay. However, these decisions
notwithstanding, we reiterate that condonation of
delay being a discretionary power available to
courts, exercise of discretion must necessarily
depend upon the sufficiency of the cause shown
and the degree of acceptability of the explanation,
the length of delay being immaterial. Sometimes,
due to want of sufficient cause being shown or an
acceptable explanation being proffered, delay of
the shortest range may not be condoned whereas,
in certain other cases, delay of long periods can be
condoned if the explanation is satisfactory and
acceptable. Of course, the courts must distinguish
between an 'explanation' and an 'excuse'. An
'explanation' is designed to give someone all of the
facts and lay out the cause for something. It helps
clarify the circumstances of a particular event and
allows the person to point out that something that
has happened is not his fault, if it is really not his
fault. Care must however be taken to distinguish
an 'explanation' from an 'excuse'. Although
people tend to see 'explanation' and 'excuse' as
the same thing and struggle to find out the
difference between the two, there is a distinction
which, though fine, is real. An 'excuse' is often
offered by a person to deny responsibility and
consequences when under attack. It is sort of a
defensive action. Calling something as just an
'excuse' would imply that the explanation
proffered is believed not to be true. Thus said,
there is no formula that caters to all situations
and, therefore, each case for condonation of delay
based on existence or absence of sufficient cause
has to be decided on its own facts. At this stage, we
cannot but lament that it is only excuses, and not
explanations, that are more often accepted for
condonation of long delays to safeguard public
interest from those hidden forces whose sole
agenda is to ensure that a meritorious claim does
not reach the higher courts for adjudication.
18. In the case in hand, the delay in presentation of the
restoration application before the trial court was almost more
than 04 months and no reasonable and plausible explanation with
sufficient cause has been adduced. The entire explanation given
by the applicant depicts a casual approach, unlawful mind of law
of limitation despite being aware of position of law. That apart,
when there is such a long delay and there is no proper
explanation, laches would also come into play while noticing as
to the manner in which a party has proceeded before filing a
restoration petition.
19. In view of the aforesaid authoritative pronouncement of
law as regards object, scope, extent, limitation and the
discretionary power to be exercised under Section 5 of the
Limitation Act laid down by Hon'ble the Apex Court, this Court
is of the view that the delay of more than 120 days caused in
presentation of the restoration petition by the applicant is
hopelessly barred by limitation as neither sufficient cause is
shown in the application seeking condonation of delay nor the
same is found to be the satisfaction of the Courts.
20. As far as the case of Ankur Sharma (supra) is concerned
that has no bearing in the facts of the present case as in that case
on 19.07.2017 when the case was dismissed, it was stated that
petitioner was present in the court till 03.05.2017 and application
was moved on the next date i.e 04.05.2017 while in the case in
hand, application has been filed after considerable period of time.
21. As far as the case of Salikram (supra) is concerned, the
appellants were residing in different place and they were not
informed by their counsel about obtaining of the certified copies
of the impugned judgment and decree while in the case in hand,
the case was being contested by Shri R.S.S.Patel, Advocate real
brother-in-law of the applicant who himself had furnished
process fees on earlier occasion. Therefore, it is not worth
acceptance that he had no knowledge about the date when the
suit was dismissed in default. Hence, petitioner gets no benefit
from the case of Salikram (supra) too.
22. On the contrary, on perusal of the material on record, it is
apparent that petitioner failed to show any just and reasonable
explanation about the undue delay caused in presentation of the
restoration application. When no sufficient cause or reason is
given for delay by litigant, the delay cannot be condoned as an
act of generosity. In the case in hand, applicant has failed to
demonstrate reasonable grounds for delay in pursuing the matter
and this crucial requirement for condoning the delay is unmet.
Therefore, I am of the view that the learned trial court as well as
learned appellate court have not committed any error in passing
the impugned orders. Consequently, this petition being devoid of
merits, is hereby dismissed.
(DINESH KUMAR PALIWAL)
JUDGE
MKL
