Dismissed

Chanda Bai Widow of Bashirkhan v. Ajay Singh S/O Kalu Singh

Rajasthan HC11 Feb 2025CRES/513/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a Civil Restoration Application seeking to restore an impugned Civil Misc. Appeal. The court held that the extraordinary delay of over 1600 days was not sufficiently explained, failing the requirements of Section 5 of the Limitation Act.

What did the court decide?

Restoration application under Section 5 of Limitation Act dismissed; underlying Civil Misc. Appeal remains dismissed.

Chanda Bai Widow of Bashirkhan Vs Ajay… — Civil Procedure and Limitation | Rajasthan HC (2025)

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[2025:RJ-JP:6761]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Restoration Application No. 513/2018

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Chanda Bai Widow Of Bashirkhan, Aged About 60 Years, R/o Reechva Police Station Bakani, Tehsil Jhalrapatan, Distt. Jhalawar.

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Ruksana D/o Bashirkhan (W/o Shabir Hussain), R/o Near Surajpole Gate, Talai, Mohalla, Jhalrapatan, Distt. Jhalawar.

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Rehana D/o Bashirkhan (W/o Mohammad Israel), R/o Reechva, Police Station Bakani, Tehsil Jhalrapatan, Distt. Jhalawar.

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----Petitioners

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Versus

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Ajay Singh S/o Kalu Singh, R/o Raipur, Tehsil Pirawa, Distt. Jhalawar. (Jeep Driver)

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Kalu Singh S/o Shyamlal, R/o Raipur, Tehsil Pirawa, Distt. Jhalawar. (Jeep Owner)

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National Insurance Company Limited, Branch Office, Police Line Circle, Jhalawar.

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----Respondents

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For Petitioner(s)	: Mr. SanjayMehrishi,Advocate
For Respondent(s)	:

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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11/02/2025

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Instant Civil Restoration Application is preferred to restore S.B. Civil Misc. Appeal No. 4683/2009 dismissed on 07.02.2014 in absence of counsel for appellant.

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Office has pointed out a delay of 1606 days in filing the restoration application. In application, it was mentioned that Mr. Sanjay Mehrishi, Advocate was sick on 07.02.2014 and he made a request to his colleague to seek adjournment. The counsel was under

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the impression that the appeal was posted for hearing in due course. On 26.07.2018, first time it has come to his notice that his case was dismissed in default. An affidavit of Ruksana (one of applicant) is filed. Herein, there is an extra-ordinary delay of 1606 days and same is more than four and a half years. It is necessary for the appellant to show at least sufficient ground for condonation of delay.

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Heard learned counsel for appellant and perused the material available on record.

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Section 5 of the Limitation Act prescribes that any appeal or revision or an application may be admitted after the prescribed period, if the appellant or the petitioner satisfies the Court on sufficient cause for not preferring an appeal or revision or making an application within prescribed period.

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In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon’ble Supreme Court laid down the following principles to allow application under Section 5 of the Limitation Act:-

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Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner.

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When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

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There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala

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fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

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In case of Balwant Singh (dead) Vs. Jagdish Singh and Ors. 2010 (8) SCC 685 , Hon’ble Supreme Court while considering Section 5 of Limitation Act has referred the judgment in the case of Union of India Vs. Ram Charan AIR 1964 SC 215 and observed that the explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of Hon’ble Supreme Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay.

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In the case of Brijesh Kumar & Ors. v. State of Haryana & Ors.: (2014) 13 SCC 291 , while referring the judgment of Esha

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Bhattacharjee v. Raghunathpur Nafar Academy & Ors.: (2013)

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12 SCC 649 , Hon'ble Supreme Court has laid down that sufficient cause is a condition precedent for exercise of discretion by the Court for condonation of delay. The Supreme Court further observed that the Court cannot condone the delay, if it is not properly, satisfactorily and convincingly explained, and a delay cannot be condoned on sympathetic grounds.

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Very recently condonation of delay under Section 5 of Limitation Act was considered by Hon’ble Supreme Court in case of P. Subba

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Reddy (died) by LRs. And Ors. Vs. Special Deputy Collector

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(LA) 2024 INSC 286 wherein also it was held that unless sufficient cause is shown the application under Section 5 of Limitation Act cannot be allowed. The underlying provisions after harmonious construction of provision of law were formulated in following

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manner:-

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(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

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(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

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(iii) The provisions of the L imitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

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(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

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(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as,

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where there is inordinate delay, negligence and want of due diligence;

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(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

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(vii) Merits of the case are not required to be considered in condoning the delay; and

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(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamount to disregarding the statutory provision.

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There is no affidavit on the record of the counsel who

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appeared on behalf of Mr. Sanjay Mehrishi. Similarly, there is no affidavit of Mr. Sanjay Mehrishi in support of application to show that he instructed Mr. Timan Singh to inform Mr. R.P. Vijay about adjournment. Herein, this case Mr. Sumit Kaswa was present on behalf of respondent and Mr. R.P. Vijay was not present on date of dismissal of civil misc. appeal. The facts narrated in the application are neither correct nor convincing. The reasons assigned in the application for condonation of delay is also not convincing and not sufficient to condone delay in the instant matter, therefore, the restoration application is also not filed on convincing grounds.

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In view of aforesaid, application under Section 5 of Limitation Act is hereby dismissed and consequently resulting into dismissal of civil restoration application on merits and as well as on delay.

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Pending application(s), if any, also stands disposed of.

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(ASHOK KUMAR JAIN),J

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MONU /07

Chanda Bai Widow of Bashirkhan v. Ajay Singh S/O Kalu Singh

Case brief

What is this about?

What did the court decide?

Chanda Bai Widow of Bashirkhan v. Ajay Singh S/O Kalu Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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