Allowed

Dheerajdhwaj Tiwari v. R.K. Kesharwani

Chhattisgarh HC3 Jul 2023MCC/174/2023

Case brief

AI extract

What is this about?

The Court allowed an application for condonation of delay and restoration of a judgment. It held that the pandemic-induced inability to contact counsel constituted sufficient cause under Section 5 of the Limitation Act. The appeal was restored with a six-week extension to remove default.

What did the court decide?

Condonation of delay allowed; F.A. No.285/2016 restored; 6 weeks' time granted to remove default.

Dheerajdhwaj Tiwari Vs R.K. Kesharwani — Civil Procedure and Limitation | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MCC No. 174 of 2023

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Dheerajdhwaj Tiwari S/o Late Devdutt Tiwari Aged About 66 Years R/o Tilaknagar, J-272, Gudhiyari, Raipur, Tahsil And District Raipur (Chhattisgarh)

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---- Applicant

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Versus

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R.K. Kesharwani S/o Late Shri G.L. Kesharwani Aged About 51 Years R/o Green Park Colony, Jarhabhatha Bilapur, District Bilapur, Chhattisgarh, Present Address - B/96 Housing Board Colony, Kota, Raipur, Tahsil And District Raipur (Chhattisgarh)

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---- Respondent

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For Applicant : Shri Ravindra Sharma, Advocate For Respondent : Shri Palash Tiwari, Advocate

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Hon'ble Shri Justice Sachin Singh Rajput

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Order On Board

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03/07/2023

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This is application for restoration of F.A. No.285/2026 which was dismissed on account of non-compliance of order dated 15/07/2020 by which, a week’s time was granted to the applicant herein to remove default.

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Learned counsel for the applicant submits that on the date of hearing, counsel appointed by the appellant could not appear, therefore in the absence of counsel for the appellant, the order was passed. He further submits that during that period, there was a wave of Covid pandemic, therefore, the appellant could not contact his counsel and could not come to know about the peremptory order passed by this Court. As soon as he came to know about the dismissal of the appeal, after obtaining necessary document and certified copy, an application was moved before the Legal Services Authority and thereafter, this MCC has been filed along with application for condonation of delay.

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Learned counsel for the respondent heavily opposes the submission on the ground that the MCC is barred by limitation of 944 days and no

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sufficient cause has been shown by the applicant herein. Therefore, the application for condonation of delay may be rejected.

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Heard counsel for the parties and considered their rival submissions.

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Order dated 15/07/2020 reflects that no representation was made on behalf of the appellant. This Court passed a peremptory order granting one week’s time to remove the default failing which the appeal shall be dismissed without further reference to the Bench. The submission of learned counsel for the applicant is that during that period the entire country and the world was going through Covid pandemic, therefore, the applicant could not contact his counsel and was not aware of the order passed by this Court, which can safely be said to be a sufficient cause.

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In the case of N. Balakrishnan V. M. Krishnamurthy¹ , it has been held by the Supreme Court that sufficient cause has to be construed liberally especially when the delay is not deliberate and malafide. Relevant paragraphs of the judgment are extracted below:-

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“11. Rules of limitation are not meant to destroy the right 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 necessitation newer persons to seek legal remedy by approaching the Courts. So a life span 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 finis litium ( it is for the general welfare that a period be putt to litigatin). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilaory tactics but seek their remedy promptly. The idea is that every legal remedy must be kep 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

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1 (1998) 7 SCC 123

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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 Vs. Kuntal Kumari [AIR 1969 Sc 575] and State of West Bengal Vs. S.A.No.331 of 2013 The Administrator, Howrah Municipality [ AIR 1972 SC 749].”

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The Hon’ble Supreme Court in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others² has laid down the principles for deciding application for condonation of delay. Para 21 of the judgment states as under:-

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“21. From the aforesaid authorities the principles that can broadly be culled out are:

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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.

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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 encapsule 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

2 2013 (12) SCC 450

delineation.

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.

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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 S.A. No.331 of 2013 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, 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 scrutinized 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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In view of above, considering the submissions and also the reasons assigned in the application for condonation of delay, this Court is of the considered view that the applicant was able to show sufficient cause for filing application for condonation of delay. Accordingly, the application for condonation of delay under Section 5 of Limitation Act is allowed.

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9. Heard on application for restoration of F.A. No.285/2016.

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For the reasons stated in the application, the MCC is allowed. F.A.No.285/2016 is restored to its original number. The applicant is granted 6 weeks’ time to remove the default, if any. If the default is not removed within 6 weeks, this order shall lose its efficacy.

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Sd/- (Sachin Singh Rajput ) Judge

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Deepti

Dheerajdhwaj Tiwari v. R.K. Kesharwani

Case brief

What is this about?

What did the court decide?

Dheerajdhwaj Tiwari v. R.K. Kesharwani

Case brief

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What did the court decide?

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