Dismissed

Sudesh Jain v. Nutan Kumar Sahu

Chhattisgarh HC18 Aug 2020FA/654/2018

Case brief

AI extract

What is this about?

This order addresses an application for condonation of delay in filing a first appeal. The High Court of Chhattisgarh rejected the application, holding that the appellants, having contested the underlying suit vigorously, were not ignorant of legal remedies. The Court found the delay unreasonable and attributed negligence to the appellants.

What did the court decide?

Application for condonation of delay rejected; First Appeal and application under Order 41 Rule 5 CPC dismissed.

Sudesh Jain Vs Nutan Kumar Sahu — Civil Procedure and Limitation | Chhattisgarh HC (2020)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Reserved on 17-08-2020

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Pronounced on 18-08-2020

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FA No. 654 of 2018

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Sudesh Jain S/o Uttam Jain R/o Basanpur Road Mahavir Furniture District Rajnandgaon Chhattisgarh

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Ashok Shingh S/o Kameshwar Singh Rajput R/o Road No. 1, Shantinvihar Risali, ward No. 63, Bhilai District Durg Chhattisgarh.

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---- Appellants

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Versus

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Nutan Kumar Sahu S/o Kundan Sahu Aged About 50 Years R/o Maneri (Kasampur Viran Village) Tahsil Dongargon. District Rajnandgaon CG.

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Uttam Jain R/o Uttam Hotel Main Road Dongargaon, district Rajnandgaon CG

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Rakesh Dubey @ Rinku S/o Krishan Kumar Dubey R/o Dongargaon, district Rajnandgaon Chhattisgarh

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Afzal Musalman R/o Mamta Nagar Rajnandgon Chhattisgarh

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Devendra S/o Munnalal Sahu R/o Village Kopedih, post Dongargaon, district Rajnandgaon Chhattisgarh

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Kanwalram S/o MUnnalal Sahu R/o village Kopedih Post, Dongargaon District Rajnandgaon Chhattisgarh

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State of Chhattisgarh Through Collector Rajnandgaon Chhattisgarh

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---- Respondents

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For appellants	: Mr. Anand Shukla, Adv.
For Respondent No. 1	: Mr. Saket Pandey, Adv. on behalf of Mr. Anup Majumdar, Adv.
For Respondent No. 2 to 6	: None.
For Respondent No. 7	: Mr. D.C. Verma, Govt. Adv.

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Hon'ble Mr. Sharad Kumar Gupta, Judge

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C.A.V. ORDER

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FA No. 488/2018 is delinked from this appeal as FA No. 488/2018 is an admitted appeal and the instant appeal is not yet admitted.

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By this order I.A. No. 1/2018 application for condonation of delay in filing the instant appeal is being disposed of.

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Respondent No. 1 had filed a civil suit against the appellants, respondents No. 2, 4, 5, 6, 7 and 8 for declaration and permanent

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injunction.

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The Addl. Distt. Judge (FTC), Rajnandgaon (CG) passed the judgment and decree in Civil Suit No. 67-A/2014 on 26-5-2018 whereby and whereunder he decreed the suit of respondent No. 1.

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Being aggrieved appellants have preferred instant first appeal.

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In brief the appellants' case regarding I.A. No.1 is that they had no knowledge regarding legal remedies available to them so they could not proceed against the impugned judgment and decree passed by the trial Court but as soon as they received the notice regarding the appeal filed by respondents No. 4 and 5, they consulted with their counsel who advised them to challenge the impugned judgment and decree. The delay is bonafide and not deliberate. Hence, the delay of 64 days for filing the appeal may be condoned.

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Counsel for the appellants submitted that appellants had no knowledge about the pronouncement of the judgment soon after passing the same, the certified copies of the judgment and decree were not applied by them instead, they were applied by their counsel.

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Counsel for the respondents No. 1 and 7 opposed the application.

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In the matter of Shakuntala Devi Jain v. Kuntal Kumari, (AIR 1969 SC 575), Hon'ble Supreme Court observed in para 7 as under :-

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“7. The next question is whether the delay in filing the certified copy or, to put it differently, the delay in refiling the appeal with the certified copy should be condoned under Section 5 of the Limitation Act. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan [ILR 13 Madras 269, 271] “Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words “sufficient cause” receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.”

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Hon'ble Supreme Court in the matter of N. Balakrishnan v. M. Krishnamurthy, [(1998) 7 SCC 123] has observed in para 9 to 13 as

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under :-

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“9. 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 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 untrammelled by the conclusion of the lower court.

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10. The reason for such a different stance is thus:

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The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

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Rules of limitation are 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. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit

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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. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

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A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575 : (1969) 1 SCR 1006] and State of W.B. v. Administrator, Howrah Municipality [(1972) 1 SCC 366 : AIR 1972 SC 749] .

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It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.”

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Counsel for the appellants placed reliance on the decision of Hon'ble Supreme Court in the matter of Esha Bhattacharjee v. Raghunathpur Nafar Academy, [(2013) 12 SCC 649] wherein it has been held that :-

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(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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(ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

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(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

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(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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(ix) The conduct, behaviour 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.

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(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

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(xi) It is to be borne in mind that no one gets away with fraud,

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misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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(xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

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(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

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(xiv) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

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(xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

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(xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

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(xvii) 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.”

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In the case in hand judgment and decree were passed on 26-5-2018. Certified copies were applied on 29-5-2018 and they were prepared and delivered on 29-6-2018. The appeal could be filed within 90 days from 26-52018 as per the provisions of Article 116 of the Limitation Act. Period of 32 days for certified copies will be excluded. Appellants have preferred this appeal on 28-11-2018. The appellants have preferred this appeal with a delay of 64 days.

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In the case in hand, appellants have not explicitly mentioned in I.A. No. 1 that they had no knowledge about pronouncement of the judgment soon after passing the same, instead their counsel had applied for certified

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copies of judgment and decree. Moreover, ignorance of law is not excusable. Moreover, appellants who were defendants in the trial Court not only filed the written statements but also heavily contested the suit of respondent No. 1 who was plaintiff in the trial Court, it indicates that appellants had knowledge of the legal proceedings, its consequences and further remedies available to them in higher forum. Moreover, if their counsel had applied for certified copies, it means that he had applied for the same as their authorized agent, hence, they had knowledge about the judgment and decree soon after passing the same. In these circumstances, this court finds that in the case in hand, aforesaid reasons raised by appellants are of routine nature and haphazard manner. Negligence, inaction, want of bonafide is imputable to them. The aforesaid explanations do smack of malafide.

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Looking to the above mentioned facts and circumstances of the case, this Court finds that aforesaid judicial precedents laid down by Hon'ble Supreme Court in the matter Shakuntala Devi Jain (supra), N. Balkrishanan (supra) and Esha Bhattacharjee (supra), are applicable against the appellants.

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Consequently, this Court finds that appellants failed to satisfy this Court that they had sufficient cause for not preferring the appeal within prescribed period. Consequently, I.A. No. 1 is rejected.

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Consequently, instant First Appeal and I.A. No. 2, application under Order 41 Rule 5 of the CPC, are also dismissed. Sd/-

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Sd/(Sharad Kumar Gupta) Judge

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Pathak

Sudesh Jain v. Nutan Kumar Sahu

Case brief

What is this about?

What did the court decide?

Sudesh Jain v. Nutan Kumar Sahu

Case brief

What is this about?

What did the court decide?

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