Dismissed

Ghishu Lal v. Smt. Badaami

Rajasthan HC12 Jan 2015CR/106/2014

Case brief

AI extract

What is this about?

The Rajasthan High Court dismissed civil revision petition challenging rejection of condonation of delay for filing a civil appeal. The court held that the petitioner made a false statement regarding knowledge of the decree and showed no sufficient cause, thus no jurisdictional error occurred.

What did the court decide?

Revision petition under Section 115 CPC was dismissed as it lacked in merit.

Ghishu Lal Vs Smt. Badaami — Civil Procedure and Limitation | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. CIVIL REVISION PETITION No.106/2014 Ghishulal V/s. Smt. Badaami

Date of Order

12.01.2015

HON'BLE MR. JUSTICE P.K. LOHRA

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Mr. V.K. Aggarwal, for the petitioner. Mr. A.K. Babel, for respondent.

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Petitioner-defendant has preferred this revision petition under Section 115 CPC assailing the impugned order dated 30^th November, 2013 passed by the learned District Judge, Chittorgarh, whereby his application under Section 5 of the Limitation Act for condonation of delay in civil regular first appeal is dismissed.

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The brief facts of the case are that respondentplaintiff instituted a civil suit against the petitionerdefendant for perpetual injunction not to cause any disturbance in the suit property, which is owned by him and in his possession. The suit is contested by the petitioner

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and after conclusion of the trial, learned Additional Civil Judge, Chittorgarh (learned trial Court) decreed the suit on 19^th February, 2010. When the decree was put to execution by the respondent-plaintiff under Order 21 Rule 32 CPC, notices were issued to the petitioner and same were served on him on 6^th January, 2012. After service of notice, reply was filed by the petitioner on 17^th April, 2012 duly supported by his affidavit. When execution proceedings were going on, the petitioner-defendant filed first appeal before the learned District Judge, Chittorgarh (appellate Court). As the appeal was presented after delay of more than three years, petitioner also made endeavour for condonation of delay and separate application under Section 5 of the Limitation Act is filed. For seeking condonation of delay, petitioner has averred following facts, which are clearly discernible from Annex.R/2 produced on behalf of the respondent with his reply to the stay petition:-

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The application is contested by the respondent

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ह�

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and after hearing the arguments, the prayer made in the application did not find favour from the learned appellate Court and consequently application for condonation of delay is rejected by the impugned order.

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Mr. V.K. Agarwal, learned counsel for the

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petitioner has urged that, while considering application for condonation of delay, appellate Court is required to construe term 'sufficient cause' liberally for advancing the cause of justice. Assailing the impugned order, learned counsel would contend that, while rejecting the application under Section 5 of the Limitation Act, learned Court below has taken too technical view in construing the sufficient cause, and therefore, the order impugned suffers from vice of serious jurisdictional error. Mr. Agarwal further submits that the learned appellate Court, while rejecting the application for condonation of delay, has committed illegality and material irregularity in exercise of its jurisdiction, and therefore, impugned order is liable to be interfered with. In support of his contention, learned counsel has placed reliance on following decisions :-

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(i) Pundlik Jalam Patil (D) by Lrs. V/s. Exe.

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Eng. Jalgaon Medium Project & Anr. [JT 2008 (11) SC 596].

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(ii) Manmohan V/s. Sivarajan & Ors. (Civil Appeal No.10581/2013 decided on 25^th November, 2013.

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Per contra, learned counsel for the respondent, Mr. Babel submits that the learned trial Court has passed the decree after bipartite hearing and appeal against the same was filed inordinate delay of more than three years for which there is no valid explanation, and therefore, the learned appellate Court has not committed any jurisdictional error in declining the prayer of the petitioner. Mr. Babel further submits that true it is that sufficient cause is to be construed liberally but that does not mean that a party, which is totally callous and negligent, be allowed latitude to take advantage of its total apathy and negligence. Mr. Babel would contend that even the averments contained in the application for condonation of delay are not inspiring confidence inasmuch as the petitioner has made an attempt to show date of knowledge as 11^th September, 2013 whereas, in fact, he has very candidly admitted before the executing Court that he had knowledge about the decree as early as on 17^th April, 2011. With these submissions, Mr. Babel has urged that a litigant, who has made patent mis-

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statement of fact, cannot be granted any indulgence and the learned Court below has, therefore, rightly exercised its discretion in declining the prayer for condonation of delay.

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I have learned counsel for the parties and perused the impugned order and other materials available on record.

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A bare perusal of the application for condonation of delay makes it amply clear that petitioner has miserably failed to make out a case for condonation of delay inasmuch as no sufficient cause is mentioned in the application. In totality, the averments contained in the application are absolutely vague, cryptic and unspecific. Moreover, the petitioner has contested the suit and he has also joined the issue before the executing Court as early as on 17^th April, 2012, obviously, averments contained in the application that he came to know about passing of the decree as late as on 17^th September, 2013 is per se false and misleading. In these circumstances, in my opinion, learned Court below has not committed any jurisdictional error in rejecting the application for condonation of delay. As a matter of fact, learned Court below has not committed any illegality or

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material irregularity in exercise of its jurisdiction warranting interference in the revisional jurisdiction.

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The argument advanced by the learned counsel for the petitioner that, while construing sufficient cause, Court is required to adopt pragmatic approach appears to be quite attractive, but at the same time, Hon'ble Apex court has also consistently held that gross negligence on the part of a litigant cannot be encouraged and in want of sufficient cause being shown application seeking condonation of delay is liable to be rejected. The contention of the learned counsel that he has got a very strong case need not be examined at this stage because before switching on to the merits of the case, it is necessary for the petitioner to cross the hurdle of limitation.

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Hon'ble Supreme Court in case of Basawaraj &

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Anr.V/s. Special Land Acquisition Officer [(2013) 14

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SCC 81], while construing the expression “sufficient cause” and examining the intent of statute of limitation, has held as under :-

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9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word “sufficient” is

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“adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee , Mata Din v. A. Narayanan , Parimal v. Veena and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai .)

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10. In Arjun Singh v. Mohindra Kuma r t his Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.

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11. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned , whether or not sufficient cause has been

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furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao .)

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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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13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury’s Laws of England , Vol. 28, p. 266:

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“605. Policy of the Limitation Acts .—The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, ( 1 ) that long dormant claims have more of cruelty than justice in them, ( 2 ) that a defendant might have lost the evidence to disprove a stale claim, and ( 3 ) that persons with good causes of actions should pursue them with reasonable diligence.”

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An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence

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or laches. (See Popat and Kotecha Property v. SBI Staff Assn. , Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project .)

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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.

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Therefore, viewed from any angle, in my opinion, learned Court below has not committed any illegality or material irregularity in exercise of its jurisdiction while rejecting the application of the petitioner for condonation of delay and the said order requires no interference in the limited scope of judicial review under Section 115 CPC.

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Resultantly, the revision petition lacks in merit and the same is, accordingly, dismissed.

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(P.K. LOHRA) J.

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a.asopa/-

Ghishu Lal v. Smt. Badaami

Case brief

What is this about?

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Ghishu Lal v. Smt. Badaami

Case brief

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