Vijay Ram Sharma Deceased through His Lrs Jodhya Devi and Ors. Vs Anil Kumar Sharma and Ors.

The present application has been filed for condonation of delay in filing the present appeal. It has been averred in the application that the impugned judgment and decree was passed by the learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. (camp at Bilaspur) on 30.04.2019. It has further been averred in the application that the applicants/appellants No. 1 and 2 came to know about the passing of the judgment and decree dated 30.04.2019 in the month of December, 2020, when they received the notice from the learned Executing Court for their appearance on 13.01.2020. Thereafter the applicants/appellants tried to contact the counsel to know about the status of the case but he neither picked up the phone nor replied to the call of the applicants

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No. 1 and 2. The applicants again contacted the counsel in November 2021, who informed them that since the learned trial Court had dismissed the suit of the present respondents/plaintiffs, he did not consider it necessary to inform the applicants about the judgment and decree passed by the trial Court.

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It has been averred that the certified copy of impugned judgment and decree was delivered to the applicants/appellants on 09.12.2021 and thereafter, the applicants approached the counsel at Shimla on 15.12.2021 and after scrutinizing the documents, the counsel advised them to supply the entire record of the learned trial Court alongwith the certified copy of the judgment and decree dated 26.06.2018. Thereafter as per the advice of the counsel, applicant/appellant No.2 applied for the copy of the judgment and decree dated 26.06.2018 on 23.12.2021 and the same was supplied to the appellant No.2 on 08.04.2022.

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It has been averred in the application that on account of illness of applicant/appellant No.1, the applicant/appellant No.2 could not approach the counsel at Shimla for doing the needful and after recovery from the illness of applicant/appellant No.1 in the month of October, 2020, the applicant/appellant No.2 approached the counsel at Shimla for filing the appeal in this Court. It has been contended by the learned counsel for the applicants/appellants that the delay in filing the appeal is neither intentional nor willful and the same has

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occurred due to unavoidable circumstances, which were beyond the control of the applicants/appellants.

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The application has been vehemently opposed by the non-applicants by filing detailed reply. It has been averred in the reply that there is huge delay of four years in filing the appeal and that the same has been instituted solely with an intention to delay the execution proceedings, which have been pending since the year 2019.

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On merits, it has been submitted that from the conduct of the applicants, it is evident that their endeavour is to scuttle and prolong the execution proceedings which are pending against them. In the main suit the applicants were summoned by the learned trial Court on 14.12.2015 and on account of the nonappearance, they were proceeded against ex-parte. It has been averred that on 01.03.2016, the applicants filed an application for setting aside the ex-parte order and in the said application also, they did not appear before the learned trial Court and, as such, their application for setting aside the ex-parte order was dismissed.

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It has further been averred that before the learned First Appellate Court, after issuance of notices, the defendants/appellants chose not to appear despite being duly served, and were accordingly proceeded against ex parte by the learned District Judge on 23.10.2018.

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It has been contended in the reply that numerous opportunities were given to the applicants by the learned Executing Court, however, on one pretext or the other execution petition was delayed, The learned Executing Court, upon exercising power under Section 39 B of CPC, has transferred the execution petition alongwith decree of the Court of learned Civil Court at Nalagarh. Therefore, it has been prayed that application be dismissed.

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I have heard the learned counsel for the parties and have gone through the record of the case file.

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The record reveals that the Civil suit was filed by the present respondents for recovery of Rs. 1,50,000/- and the same was decreed on 26.06.2018 by the learned Civil Judge (Junior Division), Bilaspur, District Bilaspur, HP. It has come on record that though the defendants/appellants were duly served before the learned trial Court but they chose not to contest the proceedings and were proceeded against ex-parte in the main suit on 14.12.2015. Alongwith the reply to the application under Section 5 of Limitation Act zimni orders have been placed on record reveals that on 01.03.2016, an application under the provisions of Order 9 Rule 7 C.P.C was filed by the defendants and the said application was also dismissed in default on 02.05.2016. Ultimately learned trial Court dismissed the suit filed by the plaintiffs.

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Feeling dissatisfied, the plaintiffs/respondents preferred an appeal in the Court of learned Additional District Judge, Ghumarwin, District Bilaspur,HP.(Camp at Bilaspur), on 10.08.2018. In the appeal the present appellants were duly served and again in the appeal they were proceeded ex-parte on 23.10.2018. The nonapplicants filed the execution petition before the learned trial Court. Time was sought on various occasions by the present applicants for placing on record copy of the stay order as it was submitted by them that appeal stand filed before this Court. Numerous opportunities on different dates i.e on 19.10.2022,02.11.2022, 04.03.2023, 25.04.2023 and 06.06.2023, were given to the present applicants to place on record a copy of stay order, if any by this Court. The conduct of the applicants shows that after the passing of the impugned judgment by the learned First Appellate Court on 30.04.2019, they have, for the past seven years, unjustifiably prolonged the litigation and have been dragging the non-applicants/respondents in an uncalled for litigation.

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It is a matter of record that the applicants were duly served before the learned trial Court and when they were proceeded against ex-parte, application for setting aside ex-parte order was filed, that too also came to be dismissed in default. In the application filed for condonation of delay there is no plausible and reasonable explanation. There is a huge delay of more than

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three years five months and thirteen days which is unexplained. There is no plausible explanation that what prevented the applicants from filing the instant appeal after passing of impugned judgment by the learned First appellate Court on 30.04.2019. The act and conduct of the applicants shows that the thrust of the applicants is to scuttle the execution petition which stands filed by the non-applicants /respondents before the learned trial Court. 12. This Court sees no reason to condone the delay in filing the present appeal. There is a huge delay of three five months and thirteen days in filing the appeal. No plausible explanation has come forward to condone the delay.

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The Hon’ble Apex Court, in its various decisions, has held that the law of limitation must be applied with full rigour, and a right that has accrued in favour of the non-applicants cannot be taken away without assigning any reason.

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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. 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

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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 reopened by taking aid of Section 5 of the Limitation Act. It must always be borne in mind that while construing ‘sufficient cause’ in deciding application under Section 5 of the Limitation Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of non-applicant accrues and this right ought not to be lightly disturbed.

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The Hon’ble Apex Court has repeatedly held that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled for 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. The liberal approach in considering sufficiency of cause for delay should not be allowed to override substantial law of limitation. The concepts such as liberal approach cannot be employed to jettison the substantial law of limitation. It is a well settled principle of law that the limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. Where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the

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“sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever.

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The Hon’ble Apex Court in Special Leave Petition (Civil)NO. 31248 OF 2018 Pathapati Subba Reddy (died) by LRs & Ors versus The Special Deputy Collector (LA) has held as under:

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“12. In view of the above provision, the appeal which is preferred after the expiry of the limitation is liable to be dismissed. The use of the word ‘shall’ in the aforesaid provision connotes that the dismissal is mandatory subject to the exceptions. Section 3 of the Act is peremptory and had to be given effect to even though no objection regarding limitation is taken by the other side or referred to in the pleadings. In other words, it casts an obligation upon the court to dismiss an appeal which is presented beyond limitation. This is the general law of limitation. The exceptions are carved out under Sections 4 to 24 (inclusive) of the Limitation Act but we are concerned only with the exception contained in Section 5 which empowers the courts to admit an appeal even if it is preferred after the prescribed period provided the proposed appellant gives ‘sufficient cause’ for not preferring the appeal within the period prescribed. In other words, the courts are conferred with discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellant is able to establish ‘sufficient cause’ for not filing it within time. The said power to condone the delay or to admit the appeal preferred after the expiry of time is discretionary in nature and may not be exercised even if sufficient cause is shown based upon host of other factors such as negligence, failure to exercise due diligence etc.

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It is very elementary and well understood that courts should not adopt an injusticeoriented approach in dealing with the applications for condonation of the delay in filing appeals and rather follow a pragmatic line to advance substantial justice.

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In Lanka Venkateswarlu vs. State of Andhra Pradesh & Ors.6, where the High Court, despite unsatisfactory explanation for the delay of 3703 days, had allowed the applications for condonation of delay, this Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. High Court should have exercised the discretion in a systematic and an informed manner. The liberal approach in considering sufficiency of cause for delay should not be allowed to override substantial law of limitation. The Court observed that the concepts such as ‘liberal approach’, ‘justiceoriented approach’ and ‘substantial justice’ cannot be employed to jettison the substantial law of limitation.

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In Basawaraj and Anr. vs. Special Land Acquisition Officer8, 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

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they have no power to condone the delay on equitable grounds.

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It would be beneficial to quote paragraph 12 of the aforesaid decision which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal 8(2013) 14 SCC 81 14 | 22 approach and in implementing the statute as it stands. Paragraph 12 reads as under:

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“12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.”

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In the present case the applicants have failed to explain or prove sufficient cause in not filing the appeal. The

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explanation as given is neither reasonable or plausible which may persuade this Court to exercise the discretion. There is huge inordinate delay of more than three years five months and thirteen days which remain un explained. The learned counsel for the applicant has failed to make out the case in view of the law laid down by the Hon’ble Apex Court supra.

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Consequently, the present application being devoid of any merits, deserves to be dismissed.

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(Romesh Verma) Judge

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5^th May, 2026. (veena)

Vijay Ram Sharma Deceased through His Lrs Jodhya Devi and Ors. v. Anil Kumar Sharma and Ors.

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Vijay Ram Sharma Deceased through His Lrs Jodhya Devi and Ors. v. Anil Kumar Sharma and Ors.

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