Smt Nahani Devi vs Gopal Lal Sharma And Others
2022 Latest Caselaw 4157 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

           S.B. Civil Revision Petition No. 37/2010

1. Smt. Nahani Devi W/o Late Shri Nanda Ram, aged about 75
years, R/o Rajpura Usta, Tehsil Basti, District Jaipur Presently
Residing At C/o Shri Ramswaroop Tiwari Village Bhagwatgarh,
Near   Lakhera,    Tehsil    Chauth        Ka     Barwara,      District   Sawai
Madhopur. (Deceased)
                      -----------Non-applicant-defendant-petitioner
2. Prahlad Sharma S/o Late Shri Narayan Lal Sharma, R/o
Prahladpura, Tehsil Sanganer, District Jaipur.
3. Jagdish Narayan Sharma S/o Lallu Lal Sharma, R/o Kheda
Jagnnathpura, Tehsil Chaksu, District Jaipur.
                                                                 ----Petitioners
                                   Versus


1. Gopal Lal Sharma S/o Ramnath, aged about 64 years, R/o
Rampura Usta Tehsil Basti District Jaipur
2. Prabhu Narayan S/o Ramnath, aged about 58 years, R/o
Rampura Usta Tehsil Basti District Jaipur (Deceased)
2/1. Shanti Devi W/o Late Shri Prabhu Narayan, R/o Rampura
Usta Tehsil Basti District Jaipur
2/2. Dilkhush S/o Late Shri Prabhu Narayan, R/o Rampura Usta
Tehsil Basti District Jaipur
2/3. Prem D/o Late Shri Prabhu Narayan, R/o Village sita pura,
RIICO Industrial Area, Sanganer.
2/4. Aarty D/o Late Shri Prabhu Narayan, R/o Village sita pura,
RIICO Industrial Area, Sanganer.
2/5. Anita D/o Late Shri Prabhu Narayan, R/o Village sita pura,
RIICO Industrial Area, Sanganer.
3. Bhagwan Sahay Sharma S/o Ramnath, aged about 48 years,
R/o Rampura Usta Tehsil Basti District Jaipur
4. Madan Lal Sharma S/o Ramnath, aged about 42 years, R/o
Rampura Usta Tehsil Basti District Jaipur
5. Brijmohan Sharma S/o Ramnath, aged about 38 years, R/o
Rampura Usta Tehsil Basti District Jaipur
6. Moti Devi W/o Late Shri Ramnath, aged about 87 years
(Deceased)
6/1. Gopi D/o Late Shri Ramnath W/o Kanha R/o Village
Rampura Bas Goner, Tehsil Sanganer
6/2. Soni D/o Late Shri Ramnath W/o Ghasi R/o Village


                    (Downloaded on 31/05/2022 at 09:02:10 PM)
                                                (2 of 18)              [CR-37/2010]


Salagrampura Tehsil Sanganer
6/3. Lakshma D/o Late Shri Ramnth W/o Narayan R/o Village
Salagrampura Tehsil Sanganer.
                                               -------Applicants-respondents
7. Birdhi Chand S/o Late Shri Manna Lal (Deceased)
7/1. Smt. Bhanwari W/o Late Shri Birdhi Chand                     R/o Rampura
Usta Tehsil Basti District Jaipur
7/2. Ratan S/o Late Shri Birdhi Chand , R/o Rampura Usta Tehsil
Basti District Jaipur
7/3. Kailash S/o Late Shri Birdhi Chand,                      R/o Rampura Usta
Tehsil Basti District Jaipur
7/4. Dinesh S/o Late Shri Birdhi Chand,                       R/o Rampura Usta
Tehsil Basti District Jaipur
8. Jagdish Narayan S/o Late Manna Lal,                        R/o Rampura Usta
Tehsil Basti District Jaipur
9. Rameshwar S/o Late Shri Manna Lal,                         R/o Rampura Usta
Tehsil Basti District Jaipur
                    ----Non-applicant-plaintiff No.1 to 3-respondents


For Petitioner(s)          :     Mr. Vimal Kumar Jain with
                                 Mr. Praveen Kumar Jain
For Respondent(s)          :     Mr. B.L. Agarwal with
                                 Mr. Akash Agarwal



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                  Judgment

Reserved on                                                May 19th, 2022
Pronounced on                                              May 27th, 2022
BY THE COURT:-

1. This revision petition was preferred by the petitioner No.1-

defendant-Khatedar Smt. Nahani Devi (Now deceased) and later

on, petitioner Nos.2 and 3 were also allowed to join the present

petition, to whom petitioner No.1 had transferred her Khatedari

rights of the agricultural lands in question through registered sale

deed and their names have been entered into as Khatedar in the

revenue record. Petitioners are aggrieved by the order dated

(3 of 18) [CR-37/2010]

23.03.2010 passed by the Additional District Judge, Jaipur District,

Jaipur in Civil Misc. Appeal No.93/2008 whereby and whereunder

the Appellate Court, while quashing the order dated 13.08.2008

passed by the Civil Judge (Senior Division), Jaipur District, Jaipur,

dismissing the application for restoration filed under Order 9 Rule

9 CPC, has condoned the delay of 9 years "from 26.07.1996 to

08.07.2005" with a cost of Rs.2000/-and directed the trial Court

to decide the application for restoration afresh on merits.

2. It appears that a civil suit for specific performance and

permanent injunction was instituted on 16.04.1992, on the basis

of an agreement dated 03.01.1988 which was dismissed in default

and for non-prosecution at the stage of plaintiffs evidence on

26.07.1996. Thereafter, application for restoration of suit was

moved on 08.07.2005, it means after near about 9 years. The trial

Court did not find any sufficient reason to condone the delay of 9

years and dismissed the application for restoration vide order

dated 13.08.2008. On filing appeal, the Appellate Court condoned

the delay and directed the trial Court to consider and decide the

application for restoration afresh on merits. Hence, feeling

aggrieved by condonation of such huge, exorbitant and inordinate

delay of 9 years by the Appellate Court, this revision petition has

been filed under Section 115 of the Code of Civil Procedure,

challenging the order dated 13.08.2008.

3. The issue falls for consideration by the High Court under this

revision petition is that as to whether the Appellate Court

committed any material illegality/ irregularity and jurisdictional

error in condoning the delay of 9 years interfering with the

(4 of 18) [CR-37/2010]

discretion of the trial Court where the trial Court declined to

condone such inordinate delay after due consideration of all the

facts and circumstances of case and as to whether the impugned

order deserves to be quashed or not?

4. The relevant facts as culled out from the record may be

recapitulated as under:

4.1 An agreement to sale dated 03.01.1988 was alleged to be

executed by petitioner No.1-defendant Smt. Nahani Devi in favour

of two persons namely Manna Lal and Rajnath in order to sale her

agricultural lands in question against the total sale consideration

of Rs.42,000/-, out of which an amount of Rs.37,000/- was

alleged to be paid and remaining Rs.5000/- has to be paid at the

time of registration of sale deed.

4.2 After the agreement, out of two agreement holders, Manna

Lal passed away on 15.05.1990, hence, his wife and three sons

(plaintiff Nos.1 to 4) with co-agreement holder Rajnath (plaintiff

No.5) jointly instituted a civil suit for specific performance and

permanent injunction on 16.04.1992, against petitioner No.1-

defendant Smt. Nahani Devi, seeking specific performance of

agreement dated 03.01.1988. In the plaint, the cause of action

was alleged to be accrued on 12.04.1992, when defendants

declined to execute the sale deed on 12.04.1992, hence, the Civil

suit was instituted on 16.04.1992.

4.3 Petitioner No.1-defendant Nahani Devi submitted written

statement on 15.05.1992 denying the execution of agreement,

receipt of any part sale consideration of Rs.37,000/- and

categorically denied delivery of the possession to the agreement

(5 of 18) [CR-37/2010]

holder. It was contended that the lands in question is in her

possession and cultivation and plaintiffs have filed the present

suit, by preparing such false agreement in order to grab her land.

4.4. The trial Court settled issues on 19.08.1994 and then the

suit was posted for producing the evidence by plaintiffs. Plaintiffs

miserably failed to produce any evidence and despite giving

several opportunities even on costs, none of plaintiffs appeared to

depose their statements, hence, lastly the suit was dismissed in

default and for non-prosecution on 26.07.1996.

4.5. No application for restoration of the suit for specific

performance was filed till 08.07.2005. The defendant-petitioner

No.1 Nahani Devi transferred the agricultural land to petitioner

Nos.2 and 3 through registered sale deed dated 30.04.2005.

Thereafter, the natural heirs and legal representatives (respondent

Nos.1 to 6) of plaintiff No.5- Ram Nath filed an application under

Order 9 Rule 9 CPC dated 08.07.2005 to restore the civil suit. No

application for restoration was filed on behalf of plaintiff Nos.1 to

4. Since the application for restoration of civil suit was filed after a

delay of about 9 years, hence, separate application under Section

5 of the Limitation Act to condone the delay of period from

26.07.1996 to 08.07.2005 was also submitted. It was alleged in

the application that plaintiff No.5 Ram Nath was dealing with suit

proceedings and he died on 02.11.2004 and applicants are in

possession and cultivation of lands in question and could not come

to know about suit proceedings and when subsequent purchasers

petitioner Nos.2 and 3 came to disturb their possession then

applicants enquired about the suit proceedings and came to know

(6 of 18) [CR-37/2010]

on 10.06.2005. From 10.06.2005, due to summer vacations of the

Civil Courts, application could not be filed. After opening of Civil

Courts from summer vacations, the application has been filed on

08.07.2005. It appears that plaintiff No.4 Amri Devi- wife of

agreement holder Manna Lal had also passed away. No

explanation for not filing the application for restoration either by

plaintiff Nos.1 to 3 or by plaintiff No.5 Ram Nath during his

lifetime, was given. Even in the application for restoration,

plaintiff Nos.1 to 3 not joined and were made party as non-

applicant Nos.2 to 4.

4.6. Petitioner- Nahani Devi submitted reply to application for

condonation of delay as well as for restoration application and

oppose reasons assigned for condonation of delay. It was alleged

that the order of dismissal of suit dated 26.07.1996 had attained

finality, and application for restoration has been filed malafidely

after an inordinate delay of 9 years. Applicants are litigants and

want to involve land in question in litigation, applicants

themselves were having knowledge of the civil suit. Plaintiffs did

not file any application for restoration. It was disclosed that

plaintiffs have sold the agricultural land to Prahlad and Jagdish

(petitioner Nos.2 and 3) through sale deed who are in possession

and cultivation of the land in question.

4.7. The trial Court, heard both parties on application for

condonation of delay as well as on application for restoration. The

trial Court considered that after filing of suit for specific

performance on 16.04.1992, issues were framed on 19.08.1994,

thereafter, for two years, the case was adjourned for producing

(7 of 18) [CR-37/2010]

evidence by plaintiffs. On 05.07.1996 last opportunity on cost of

Rs.100/- was given but when plaintiffs did not produce any

evidence and none appeared on behalf of plaintiffs, the suit was

dismissed in default and for non-prosecution on 26.07.1996. The

trial Court observed that there are five plaintiffs who filed the suit

for specific performance. Even after dismissal of suit on

26.07.1996, the plaintiff No.5 Ram Nath died on 02.11.2004.

There is no explanation as to why Ram Nath did not file any

application for restoration and how the order of dismissal of suit

could not come to his knowledge. There is no explanation for not

filing the restoration application by other plaintiffs. The trial Court

found that plaintiffs were highly negligent in prosecuting the suit

and thereafter, no application for restoration is filed by any of

plaintiffs. The application is filed by heirs of plaintiff No.5 Ram

Nath only. The trial Court observed that there is no sufficient

reason to condone the delay of 9 years in filing the application for

restoration. Thus, finally the trial Court dismissed the application

for condonation of delay as well as application for restoration vide

order dated 13.08.2008.

4.8. Respondent-applicants preferred an appeal against the order

dated 13.08.2008. In the appeal, Appellate Court did not consider

as to whether sufficient cause has been assigned for seeking

condonation of delay of 9 years but the Appellate Court has

condoned the delay merely treating the issue of delay as technical

and same can be compensated by way of cost. The Appellate

Court, did not record any reasons, to upset the findings of the trial

Court. The Appellate Court nowhere discussed as to why the

(8 of 18) [CR-37/2010]

application for restoration was not filed by plaintiffs including

plaintiff No.5 Ram Nath during his life time. The Appellate Court

dealt with the issue of delay of 9 years in a very casual and

routine manner and allowed the application under Section 5 of the

Limitation Act on cost of Rs.2000/- and quashed the order dated

13.08.2008 passed by the trial Court and further remanded the

application for restoration to the trial Court to decide the same

afresh on merits. Hence, against the order passed by the

Appellate Court dated 23.03.2010, this revision petition has been

filed.

5. Counsel for petitioners would submit that the Appellate Court

has committed material illegality and irregularity in quashing the

order of the trial Court dated 13.08.2008 and condoning the delay

of 9 years without there being any sufficient cause to explain such

exorbitant and inordinate delay. It has been argued that plaintiffs

were negligent in pursuing the suit for specific performance as

they did not produce any evidence within a period of two years

and further after dismissal of suit for non-prosecution plaintiffs

never instituted any application for restoration of suit for 9 years.

Application has been filed by natural heirs and legal

representatives of one plaintiff No.5 Ram Nath, who passed away

on 02.11.2004. Hence, there is no explanation at least from

26.07.1996 to 02.11.2004. Counsel for petitioners argued that the

order of dismissal has attained finality and allowing to restore the

suit would amounts to restoring a suit, for which even the

limitation for specific performance had also expired. Counsel has

argued that reasons to restore the civil suit and reasons to

(9 of 18) [CR-37/2010]

condone the delay are similar, hence, the Appellate Court by

condoning the delay has virtually allowed the application for

restoration of suit and remand of the application for restoration for

decision is merely an eye wash. It has been argued that the

Appellate Court has revived the suit for specific performance

which, virtually has become a dead claim. It has been prayed that

impugned order dated 23.03.2010 the Appellate Court is liable to

be quashed and the order dated 13.08.2008 passed by the trial

Court dismissing the application for restoration of suit deserves to

be upheld.

6. Counsel for petitioners has relied upon following judgments

passed in case of Majji Sannemma Vs. Reddy Sridevi [AIR

2022 SC 332], Brijesh Kumar Vs. State of Haryana [AIR

2014 SC 1612], Lanka Venkateshwarlu (D) Vs. State of A.P.

[AIR 2011 SC 1199], Balwant Singh (Dead) Vs. Jagdish

Singh [AIR 2010 SC 3043].

7. Per contra, learned counsel appearing for the respondents-

applicants has supported the impugned order dated 23.03.2010

and has relied upon following judgments passed in case of Ram

Nath Sao @ Ram Nath Sahu Vs. Gobardhan Sao [AIR 2002

SC 1201], Sahu Dawood Ammal Vs. Muniammal [AIR 1995

MADRAS 369], Ishwar Saran (Since Deceased) Vs. Vijai

Kumar Kushwaha (Since Deceased) [2021(4) Civil Court

Cases 791 (Allahabad)].

8. Heard counsel for both parties, perused the orders and

scanned the record.

(10 of 18) [CR-37/2010]

9. At the outset, it may be noticed that according to the Article

122 of the Limitation Act, 1963, period of limitation to restore a

suit is 30 days from the date of dismissal. In the present case, the

suit was dismissed on 26.07.1996 and an application for

restoration was moved on 08.07.2005. If the period of limitation

of 30 days is excluded, the application is apparently barred by

near about 3240 days delay. It is noted that by the impugned

order, the Appellate Court has condoned the huge delay of about 9

years in moving an application under Order 9 Rule 9 CPC for

restoration of civil suit. The Appellate Court has observed that

applicants are natural heirs and legal representatives of plaintiff-

Ram Nath, who had passed away after dismissal of suit and there

is no evidence on record to show that applicants were having

knowledge of suit proceedings. Further the Appellate Court

observed that the suit was dismissed in default due to non-

appearance of counsel for plaintiffs wherein plaintiffs may not be

assumed to be negligent. Lastly the Appellate Court observed that

the Court should be liberal in condoning the delay and objections

of opposite party for not condoning the delay can be compensated

by awarding costs. Thus, a perusal of the order impugned goes to

show that the Appellate Court has not observed that any sufficient

cause explaining the huge delay of about 9 years has been made

out by applicants. The Appellate Court has also not considered the

reasoning assigned by the trial Court in the order dated

13.08.2008, denying to condone the delay nor the Appellate Court

has adverted to the nature of civil suit, the conduct of plaintiffs,

non-explanation by applicants for not filing the application for

restoration by any of the plaintiffs themselves etc. The Appellate

(11 of 18) [CR-37/2010]

Court has not adverted to peculiar facts of the present case and

has adopted a casual and mechanical approach, in condoning the

delay as a matter of routine. The Appellate Court has not adverted

to the negligence on the part of plaintiffs and malafides on the

part of applicants.

10. On considering facts of the present case, it transpires that as

many as five plaintiffs (plaintif Nos.1 to 4 are three sons and wife

of agreement holder Manna Lal) and plaintiff No.5 Ram Nath is co-

agreement holder, filed the civil suit for specific performance of an

agreement dated 03.01.1988. The agreement was said to be

executed in the joint name of Manna Lal and Ram Nath. The civil

suit was instituted on 16.04.1992 wherein issues were framed on

19.08.1994. The Civil suit was posted thereafter for producing

evidence by plaintiffs. It appears that plaintiffs did not turn up to

produce their evidence for as long as two years and during this

period, several opportunities were accorded to plaintiffs, even

after giving last opportunity, one more opportunity was extended

on cost of Rs.100/- vide order dated 05.07.1996 and thereafter,

when neither any of the plaintiff nor their Advocate appeared

before the trial Court, the civil suit was dismissed in default and

for non-prosecution on 26.06.1996. After dismissal of the civil

suit, plaintiff No.5 Ram Nath died on 02.11.2004. Applicants who

moved the application for restoration of civil suit on 08.07.2005

are natural heirs and legal representatives of deceased plaintiff

No.5 Ram Nath. Applicants have not stated any reason for not

filing the application for restoration by any of the plaintiff including

their father and husband Ram Nath during his lifetime. Thus, there

(12 of 18) [CR-37/2010]

is no explanation of delay after dismissal of suit on 26.07.1996 till

02.11.2004 when plaintiff No.5 Ram Nath is said to be passed

away. A casual statement that Advocate of plaintiffs did not inform

plaintiffs about dismissal of suit is not suffice to explain the delay

of 9 years. After death of plaintiff No.5 Ram Nath on 02.11.2004,

applicants claimed to have knowledge of present suit proceedings

on 05.05.2005 and obtained certified copy of the suit proceedings

on 10.06.2005. It appears from record that applicants with other

plaintiff Nos.1 to 3 jointly filed a revenue suit before the Sub

Divisional Officer, Bassi for permanent injunction on 13.06.2005.

It is necessary to notice that plaintiff Nos.1 to 3 have not filed any

application for restoration of suit but the application for restoration

of suit has been filed by the natural heirs and legal

representatives of deceased plaintiff No.5 Ram Nath only on

08.07.2005. In the application for restoration, plaintiff Nos.1 to 3

have been added as non-applicants Nos.2 to 4 with the petitioner

No.1-defendant Nahani Devi. Here it may be inferred that the

application under Order 9 Rule 9 CPC has not been moved with

bonafides and clean hands as applicants tried to mislead the

Court seeking condonation of delay on account of death of plaintiff

No.5 Ram Nath. Obviously, applicants were not party to the suit

proceedings, hence, they tried to encash this point to contend that

they were not having knowledge of suit proceedings. Plaintiff

Nos.1 and 3 deliberately were not joined as applicants in

application for restoration, apparently for the reason that they

have no explanation for not filing the application for restoration for

a long period of 9 years. Even there is no explanation for plaintiff

No.5 Ram Nath also for not filing application for restoration during

(13 of 18) [CR-37/2010]

his lifetime as he died only on 02.11.2004, whereas the suit had

been dismissed way back on 26.06.1996. This aspect of the

matter was noticed by the trial Court and considering the mala

fides on the part of applicants, the application for restoration was

dismissed while declining to condone the delay. Moreso, when the

applicants and plaintiff Nos.1 to 3 had jointly filed the revenue suit

for permanent injunction before the Sub Divisional Officer, Bassi

on 13.06.2005 and plaintiff Nos.1 to 3 being non-applicant in the

application for restoration, supported the stand of applicants. Such

facts and conduct of applicants and plaintiff Nos.1 to 3 were not

considered by the Appellate Court. That apart, the trial Court

noticed that the original plaintiffs too were negligent in pursuing

the civil suit for specific performance as they did not lead any

evidence for long two years. Further after dismissal of suit for

non-prosecution and in default, they did not move any application

for restoration of their civil suit for specific performance.

Therefore, there is sufficient reason to interfere that plaintiffs

were not at all interested in continuing the suit proceedings of

specific performance and for them the order of dismissal of suit in

default and for non-prosecution had attained finality. Applicants

who moved the application being natural heirs and legal

representatives of deceased plaintiff No.5, may not be allowed to

claim better case for restoration of the suit for specific

performance, which virtually has been rendered as a dead case by

their predecessors. The Appellate Court has not considered this

aspect of the matter too. Therefore, the Appellate Court, at one

hand has not looked into the peculiar facts and circumstances of

present case nor have assigned any reason to differ from the

(14 of 18) [CR-37/2010]

finding passed by the trial Court and has arbitrarily substituted its

discretion over the discretion of the trial Court. Once the trial

Court has exercised its discretion, after due consideration of the

holistic facts and circumstances of present case denying to

condone the delay and dismissing the application for restoration,

the Appellate Court has committed material illegality/ irregularity

as much as jurisdictional error in substituting its own view over

the view of the trial Court and condoning the inordinate delay of

3240 days that too without giving any sufficient cause as also

without pondering over reasons assigned by the trial Court as well

as without considering the peculiar facts of the present case.

Therefore, the Appellate Court has not exercised the discretion

judiciously and the impugned order dated 23.03.2010 suffers from

material illegality/ irregularity and jurisdictional error on the part

of Appellate Court.

11. At this stage a few decisions of the Supreme Court and the

High Courts, referred by the parties are required to be considered:

11.1 In case of Majji Sannemma (supra) referred by counsel for

petitioners, the Supreme Court observed that the words "sufficient

cause" should receive a liberal construction so as to advance

substantial justice when no negligence nor inaction nor any lack of

bonafide is imputable to applicants. The Supreme Court relied

upon the judgment passed in case of Pundlik Jalam Patil Vs.

Executive Engineer, Jalgoan Medium Project [(2008) 17

SCC 448] declined to condone the delay of 1011 days in

preferring the second appeal and set aside the order of

condonation of delay passed by the High Court. In case of

(15 of 18) [CR-37/2010]

Pundlik Jalam Patil (supra), the Supreme Court has observed as

under:-

"The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurities and uncertainty; some kind of limitation is essential for public order. The 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. 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."

11.2 In case of Brijesh Kumar (supra) relied upon by counsel for

petitioner, the Supreme Court observed that the Court while

allowing the application for condonation of delay has to draw a

discretion between delay and inordinate delay. Want of bonafides

or an inaction or negligence would deprive a party of the

protection of Section 5 of the Limitation Act, 1963. Sufficient

cause is a condition precedent for exercise of discretion by the

Court for condoning the delay. In this case, the Supreme Court

relied on the previous judgment delivered in case P.K.

Ramchandran Vs. State of Kerala & Anr. [AIR 1998 SC

2276] wherein the Supreme Court has observed as under:-

                                                    (16 of 18)                 [CR-37/2010]


                "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."

11.3 In case of Lanka Venkateshwarlu (D) (supra) referred by

counsel for petitioners declined to condone the delay of two years

and observed, placing reliance on the previous judgment passed in

case of Mithailal Dalsangar Singh & Ors. Vs. Annabai

Devram Kini & Ors. [AIR 2003 SC 4244] that even if the term

"sufficient cause" has to receive liberal construction, it must

squarely filed within the concept of reasonable time and proper

conduct of the concerned parties. The purpose of introducing the

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 defined

consequences on the right and application of a party to arise.

Once a valuable right, has accrued in favour of one party as a

result of failure of 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 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. 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 is accrued to it in law as a

result of his acting vigilantly.

11.4 In case of Ram Nath Sao @ Ram Nath Sahu (supra),

referred by counsel for respondents, the Supreme Court has

(17 of 18) [CR-37/2010]

observed that expression "sufficient cause" within the meaning of

Section 5 of the Limitation Act which receive liberal construction

so as to advance substantial justice when no negligence or

inaction or want of bonafide is imputable to party. Applying this

ratio to the facts of present case, the original plaintiffs were not

only negligent in pursuing their suit for specific performance as

also not moving any application for restoration but applicants, who

moved the application, are not bonafide and have not come with

clean hands.

11.5 The judgment passed in case of Sahu Dawood Ammal

(supra) relied upon by counsel for respondents, it was observed

that the application under Order 9 Rule 9 CPC moved by one

plaintiff in the suit filed by many plaintiffs is maintainable. This

Court has not disagreement with the proposition of delay but in

the present case, the question is not about the maintainability of

application but relevant consideration is that the application for

restoration may not be treated as bonafide and fair when there is

no reason that the plaintiff Nos.1 to 3 have not joined with the

applicants to file the application under Order 9 Rule 9 and their

such conduct clearly reflects mala fides on their part, for the

reasons discussed hereinabove.

11.6 As far as judgment passed by Allahabad High Court in case

of Ishwar Saran (supra) referred by counsel for respondent is

concerned, there is no disagreement with the proposition of law

that there should be a liberal exercise of discretion to condone the

delay and the Court should as far as may be opted to decide the

matters on merits, rather than throwing out parties on the

technicality of limitation.

(18 of 18) [CR-37/2010]

12. It is known proposition of law that the condonation of delay

is based on facts of each case. There is no straight jacket formula

for condonation of delay. In the present case, this Court finds that

applicants were not bonafide and further the application under

Order 9 Rule 9 itself is not fair as much as the negligence and

inaction on the part of original plaintiffs is apparent on the face of

record, therefore, when the trial Court has declined to condone

the delay, it was not justified to the Appellate Court to quash the

order and to condone the delay of 9 years without findings of

sufficient cause. Moreover the delay in the present case is

exorbitant and inordinate.

13. Having discussed factual and legal aspects, this Court is of

the considered opinion that the Appellate Court has committed

material illegality/ irregularity as much as jurisdictional error in

passing the impugned order dated 23.03.2010 and the same

deserves to be quashed and is accordingly quashed. As a

consequence, the order dated 13.08.2008 passed by the trial

Court is upheld.

14. As a result, the revision petition is allowed.

15. There is no order as to costs.

(SUDESH BANSAL),J

NITIN /

Powered by TCPDF (www.tcpdf.org)