Rajasthan High Court - Jodhpur

Kewal Singh Kang vs Union Of India (2025:Rj-Jd:15946) on 26 March, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:15946]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Appeal (Sb) No. 524/2025

1.       Kewal Singh Kang S/o Gurucharan Singh, Aged 68 Years,
2.       Sukhjeet Kaur W/o Kewal Singh, Aged About 68 Years,
3.       Harpreet Singh S/o Shri Kewal Singh, Aged 38 Years,
4.       Gurpreet Kaur D/o Kewal Singh, Aged About 41 Years,
         All B/c Jat Sikh and residents of Near Sainik Public
         School, Fazilka Road, Malout, District Sri Muktsar Sahib
         (Punjab).
                                                                  ----Appellants
                                    Versus
Union Of India, Union Of India
                                                                 ----Respondent


For Appellant(s)          :     Mr. Himmat Jagga
For Respondent(s)         :     Mr. KS Nahar, Spl.PP



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

26/03/2025

Instant criminal appeal has been filed by the appellants

against the order dated 15.07.2019, passed by the learned Special

Judge, CBI Cases, Jodhpur in Cr. Misc. Case No.24/2019 whereby

the learned Judge dismissed the application preferred by the

appellants under Section 452 Cr.P.C.

The present appeal has been listed in 'Defect' category as

the same is barred by delay of 1994 days. The appellants have

filed an application under Section 5 of Limitation Act.

Counsel for the appellants submits that the impugned order

was passed by the court below on 15.07.2019 but the appellants

could not approach the local counsel within time as they were

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busy in earning livelihood of the family and when they approached

the counsel, they came to know about the impugned order passed

by the trial court. It is argued that subsequently, in the month of

January, 2020, corona pandemic spread in all over the world and

therefore, the appellants could not file the appeal against the

impugned order. Thereafter, the appellant No.3 suffered from life

threatening disease of Hepatitis C and he is still under continuous

observation of the Doctors. Counsel submits that the delay in filing

the appeal was not intentional and only due to lack of knowledge

of the disposal of the application by the trial court. Only on the

un-intentional act, any party should not be deceived from justice.

Therefore, it is prayed that the delay in filing the appeal, being

bonafide, may be condoned and the appeal may be heard on

merits.

Per contra, learned Special Public Prosecutor argued that the

present appeal against the order dated 15.07.2019 has been filed

after a period of more than five years and therefore, the delay

cannot be said to be bonafide at all. No day to day satisfactory

explanation with regard to the delay caused in filing the appeal

has been given by the appellants, therefore, no case is made out

of condoning the delay caused in filing the appeal and the appeal

is liable to be dismissed being barred by limitation.

I have heard learned counsel for the parties and carefully

gone through the record.

Section 5 of the Limitation Act, 1963 is reproduced

hereinunder for our reference:

"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order

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XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

A court's principle duties are to resolve disputes between

parties and achieve substantial justice. The purpose of limiting

rules is not meant to destroy the rights of parties. They are meant

to see that parties do not resort to dilatory tactics, but seek their

remedy promptly. In accordance with widely accepted principles,

Section 5 grants the courts discretion over jurisdiction. The term

"sufficient cause" is to be interpreted liberally to promote

substantial justice in cases where the appellant cannot be held

accountable for any negligence, inaction, or lack of bonafides. In

the case of N. Balakrishnan vs. m. Krishnamurthy Reported in

1998 (7) SCC 123 the Hon'ble Apex Court has observed that:-

"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it

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is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court."

The Hon'ble Supreme Court in the case of Pathupati Subba

Reddy (Died) by L.Rs. & Ors. v. The Special Deputy

Collector (LA) [2024] 4 S.C.R. 241 has observed as under:

"16. Generally, the courts have adopted a very liberal approach in construing the phrase 'sufficient cause' used in Section 5 of the Limitation Act in order to condone the delay to enable the courts to do substantial justice and to apply law in a meaningful manner which subserves the ends of justice. In Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Ors.2, this Court in advocating the liberal approach in condoning the delay for 'sufficient cause' held that ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to explain every day's delay in filing the appeal; and since sometimes refusal to condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of 'sufficient cause' for not filing the appeal in time, is a condition precedent for exercising the discretionary power to condone the delay. The phrases 'liberal approach', 'justice-oriented approach' and cause for the advancement of 'substantial justice' cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act.

17. It must always be borne in mind that while construing 'sufficient cause' in deciding

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application under Section 5 of the Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed. The decree-holder treats the decree to be binding with the lapse of time and may proceed on such assumption creating new rights.

18. This Court as far back in 1962 in the case of Ramlal, Motilal And Chhotelal vs. Rewa Coalfields Ltd has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the court. The court, despite establishment of a 'sufficient cause' for various reasons, may refuse to condone the delay depending upon the bona fides of the party.

23. In Basawaraj and Anr. vs. Special Land Acquisition Officer, this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression 'sufficient cause' as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds."

In the case of Harish & Anr. Vs Rajasthan Board of

Muslim waqf decided on 09.03.2017 by the co-ordinate bench of

this Court, it has been observed that:

"7. It is to be noticed that while levelling an allegation against the counsel in not informing the petitioner regarding the order passed by the Estate Officer, there is no explanation set out as to why the petitioners did not contact the counsel for the period of 5½ years. A litigant

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should be vigilant enough and should keep himself informed about the pending proceedings and therefore, the bald assertions on the part of the petitioner that the counsel did not inform about the disposal of the matter, cannot be considered to be a plausible explanation for condonation of inordinate delay in filing the petition."

The relevant para from the case of Hussain Vs. Om

Prakash (supra) is reproduced as under:

"9. While construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for laying an appeal gives rise a right in favour of the decree holder to treat the decree as binding between parties. In other words, on expiry of prescribed period of limitation the decree holder acquires a benefit under law of limitation to construe the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration, which is to be kept in mind by the Court is that if sufficient cause for excusing delay is shown by the party, Court in its discretion may condone the delay. It is needless to emphasize here that even after sufficient cause has been shown by a party, it is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act. Thus, the application under Section 5 of the Act deserves rejection."

In the case of Gauri Shankar vs Ram Sahay (supra), the

Court has held that:

"8. .......Therefore, if the appellant has chosen not to approach the counsel for inquiry about the progress of the case, it is his own sweet will and he cannot now turn around and rely on the said

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so called default on part of the Advocate for seeking condonation of delay."

Admittedly, the impugned order of rejecting application

under Section 452 Cr.P.C. was passed by the trial court on

15.07.2019 and the present appeal along with an application

under Section 5 of the Limitation Act has been filed by the

appellants on 04.03.2025. Thus, the appeal is barred by 1994

days i.e. almost more than five years.

From the explanation given by the appellants in the

application for condonation of delay, it does not appear that they

were keen to prefer an appeal against the impugned order. Thus,

the appellants have failed to give any legitimate explanation for

the delay caused in the filing of the appeal. Hence, this Court is

not satisfied with the explanation given by the appellants for the