Ved Prakash & Ors. v. Lakhmi Chand (Deceased) Thr Lrs & Ors.

7.16 The Impugned Order proceeds on an erroneous and perverse appreciation of facts, inasmuch as the Appellate Court has incorrectly concluded that the Petitioners had been negligent and lackadaisical in prosecuting the proceedings since the year 2008, whereas the judicial record demonstrates that the learned Trial Court had repeatedly granted opportunities to the Petitioners, imposed costs from time to time and continued the proceedings, thereby acknowledging the Petitioners’ intention to prosecute the Suit.

7.17 The Impugned Order erroneously attributes negligence to the Petitioners despite the admitted lapses of the previous counsel, fails to apply Sections 12 and 14 of the Limitation Act, and wrongly concludes that the Petitioners attempted to extend limitation, thereby occasioning a manifest failure of justice and warranting interference by this Court.

7.18 The Appellate Court has ignored the material fact that, on the date of dismissal of the application under Order IX Rule 9 of the CPC, i.e., 22.09.2014, Petitioner No. 3 was personally present before the Trial Court and had sought an adjournment on account of the unexplained absence of the previous counsel, which circumstance negates any inference of wilful default or deliberate nonprosecution on the part of the Petitioners.

7.19 The finding recorded in the Impugned Order that the Petitioners attempted to artificially extend the period of limitation by filing subsequent restoration applications is misconceived, unsupported by the record and based on surmises, inasmuch as the Petitioners were acting on legal advice and bona fide pursuing the remedies available to them in law, without any mala fide intention or abuse of process.

7.20 The learned Appellate Court failed to appreciate that the Petitioners had already complied with the orders passed by the learned Trial Court imposing costs by handing over the entire amount to the previous counsel prior to the dismissal of the Suit, and that any non-deposit before the learned Trial Court was solely attributable to the default of the previous counsel, for which the Petitioners ought not to have been penalised.

7.21 The learned Appellate Court erroneously disbelieved the Petitioners’ explanation regarding the conduct and misguidance of the previous counsel by terming the same ‘unverifiable’, despite the fact that the explanation was consistent with the procedural history of the case and remained unrebutted, thereby resulting in a perverse factual finding.

7.22 The Impugned Order suffers from a patent failure to exercise jurisdiction vested in the Appellate Court by law, as the said Court declined to meaningfully examine the sufficiency of cause shown by the Petitioners for condonation of delay under Section 5 of the Limitation Act and instead dismissed the Appeal on hypertechnical considerations, thereby warranting interference.

7.23 The learned Appellate Court failed to appreciate the settled law laid down by the Supreme Court in State (NCT of Delhi) v. Ahmed Jaan, 2008 (10) JT 179: 2008 (11) SCALE 455, wherein it was held that the expression ‘sufficient cause’ ought to be construed pragmatically and in a justice-oriented manner, rather than through a technical exercise of explaining each day’s delay.

7.24 The learned Appellate Court failed to appreciate the settled law laid down by the Supreme Court in Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361, wherein it was held that once the explanation furnished by a party is accepted as constituting sufficient cause, the question thereafter arises whether the discretion to extend time ought to be exercised in favour of such party.

7.25 The Impugned Order is vitiated by a misapplication of the principles governing Order XLIII Rule 1(c) of the CPC, inasmuch as the Appellate Court failed to distinguish between the maintainability of an appeal and the obligation to adjudicate condonation of delay qua an admittedly appealable order dated 22.09.2014.

7.26 The learned Appellate Court committed a material irregularity in law by mechanically computing the delay as ‘about 32 months’ without excluding the period during which the Petitioners were bona fide prosecuting proceedings before this Court and before the Trial Court, and failed to duly consider Sections 12 and 14 of the Limitation Act.

7.27 The learned Appellate Court failed to appreciate the law laid down by the Supreme Court in Jaswant Singh & Ors. v. Parkash Kaur & Anr., Civil Appeal No. 9409/2017 arising out of SLP (C) No. 28713/2013, wherein it was held as follows: “58. There cannot be any dispute to the view taken by the different High Courts in various judgments as noticed above that an appeal is a substantive right and not a mere matter of procedure and unless the right to appeal is specifically conferred it cannot be inferred under Section 141 of the C.P.C. The present is not a case where we are reading the right of appeal from Section 141 CPC. Section 141 now expressly provides that Order IX is applicable to all proceedings in civil jurisdiction. When Order IX is made applicable to the proceedings in the nature of application seeking recall of the order dismissing the application under Order IX Rule 13 C.P. C. the order passed by the civil court rejecting such application is clearly referable to Order IX Rule 9 C.P.C. and an order which is clearly referable to Order IX Rule 9 C.P.C. shall also be appealable by virtue of Order XLIII Rule l(c) C.P.C. Rejection of application/or restoration which is referable to Order IX, we cannot refuse to treat an order rejecting application under Order IX Rule 9 C.P.C. for the purposes of Order XLIII Rule l(c) C.P.C. The Full Bench judgment of Madhya Pradesh High Court in so far as it answered question No.1 as framed in paragraph 1 of the judgment lays down the correct law. However, the view of the Full Bench that when application under Order IX Rule 9 C.P. C. for restoration of suit is rejected, the second application for restoration of the original application although falls under the purview of the Order IX Rule 9 C.P.C. read with Section 141, rejection of the application does not fall under Order XLIII Rule 1 (c) C.P.C., to the above extent, the view of the Full Bench cannot be approved. When the second application as held by Full Bench falls under Order IX Rule 9 C.P.C., hence the right of appeal shall also accrue when such application is rejected. In view of the above discussion, we are of the considered opinion that the appeal filed by the appellants against order dated 23.12.2005 was clearly maintainable and the High Court erred in holding that such appeal was not maintainable.”

7.28 The learned Appellate Court failed to apply the settled principle of law that a litigant ought not to suffer for the mistake, negligence or misrepresentation of his advocate, and that the refusal to condone delay on this ground defeats substantive justice and renders the Impugned Order legally unsustainable. The Appellate Court failed to appreciate the settled law of the Supreme Court in Rafiq and Anr. vs Munshilal and Anr. (AIR 1981 SC 41) wherein the Supreme Court held that:- “what is the fault of the party who has done everything in his power expected of him, would suffer because of the default of his advocate.... The Problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanor of his agent.... We cannot be a party to an innocent party suffering injustice merely because of his chosen advocate defaulted.”

7.29 The learned Appellate Court failed to appreciate the law settled by this Court in North Eastern Carrying Corporation Ltd. vs New India Assurance Co. Ltd. & Anr. 2007 (143) DLT 652 wherein it was held that litigant should not suffer for laps on part of his counsel and substantial justice deserve to be preferred over technical consideration.

7.30 In view of the aforesaid facts and grounds, the Impugned Order is illegal, perverse and unsustainable in law and on facts, and is, therefore, liable to be set aside by this Court.

ANALYSIS AND FINDINGS

8. Heard the learned Counsel for the Petitioners and perused the material placed on record.

9. In the present case, while passing the Impugned Order, the learned Appellate Court examined both the questions: whether the Petitioners had shown ‘sufficient cause’ for condonation of delay in filing the Appeal against the order dated 22.09.2014 and the issue of maintainability of the Appeal.

10. In the present case, the order dated 22.09.2014 was appealable under Order XLIII Rule 1(c) of the CPC. However, instead of availing the statutory appellate remedy, the Petitioners elected to pursue restoration proceedings nearly two years after the passing of the order dated 22.09.2014 and, thereafter, invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution, impugning the orders dated 22.09.2014 and 08.08.2016.

11. Thus, even prior to the institution of the successive restoration application on 29.07.2016 and the proceedings before this Court under Article 227 of the Constitution, culminating in the order dated 04.07.2017, which period the Petitioners seek to exclude, there had already been prolonged and unexplained delay on the part of the Petitioners in assailing the order dated 22.09.2014.

12. The learned Appellate Court has, therefore, rightly observed that substantial and unexplained delay still subsisted in filing the Appeal against the order dated 22.09.2014, as also in filing the successive restoration application on 29.07.2016 and, thereafter, pursuing other proceedings, including invocation of the supervisory jurisdiction of this Court by way of CM(M) 665/2017.

13. Such delay cannot be attributed solely to the previous counsel. In these circumstances, the Petitioners cannot seek exclusion of limitation merely on the ground that they were pursuing other remedies. A party cannot be permitted to keep limitation in abeyance by successively pursuing different proceedings and, after failure therein, seek condonation of delay in filing the statutory appeal; to hold otherwise would enable extension of limitation and, in appropriate cases, encourage dilatory tactics.

14. Significantly, while dealing with CM(M) 665/2017 filed by the Petitioners challenging the orders dated 22.09.2014 and 08.08.2016, this Court vide order dated 04.07.2017, had observed that the order dated 22.09.2014 was appealable under Order XLIII Rule 1(c) of the CPC and that the challenge thereto in the year 2017 was ‘highly belated’.

15. The contention of the Petitioners that the liberty granted by this Court vide order dated 04.07.2017 either condoned the delay or entitled them to exclusion of time cannot be accepted. Liberty to avail an appropriate remedy merely signifies that the Petitioners were permitted to pursue such remedy as may be available in law, while keeping open all defences available to the Respondents upon invocation thereof. Such liberty neither obliterated the delay already occasioned nor dispensed with the requirement of independently satisfying the Appellate Court regarding ‘sufficient cause’ under Section 5 of the Limitation Act.

16. The reliance placed by the Petitioners on the decision of the Supreme Court in Jaswant Singh (supra) is likewise of no assistance in the facts and circumstances of the present case. The said decision primarily concerned the maintainability of an appeal under Order XLIII Rule 1(c) of the CPC against an order rejecting a subsequent restoration application arising out of proceedings under Order IX Rule 9 of the CPC read with Section 141 thereof. The ratio of Jaswant Singh (supra) cannot be construed to mean that, once an appeal is held to be maintainable, delay must necessarily be condoned irrespective of the conduct of the litigant. Therefore, mere maintainability of the Appeal, in terms of the principles laid down in Jaswant Singh (supra), would not by itself entitle the Petitioners to condonation of the substantial delay in challenging the order dated 22.09.2014 or in filing the successive restoration application on 29.07.2016.

17. There is no cavil with the proposition that the expression ‘sufficient cause’ must receive a liberal construction. However, such construction cannot be adopted de hors the facts and circumstances of the case. The discretion vested in the Court under Section 5 of the Limitation Act is neither unlimited nor unbridled. The liberal approach must remain anchored in reasonableness and cannot be permitted to degenerate into an unfettered exercise of discretion, particularly where the conduct of the litigant reflects a prolonged absence of due diligence.

18. The Appellate Court has rightly observed that there was substantial delay in filing the Appeal against the order dated 22.09.2014, as also in filing the successive restoration application on 29.07.2016. The explanation furnished by the Petitioners is principally premised on alleged lapses on the part of their previous counsel, which, in the facts of the present case, could not be independently verified and was, therefore, rightly found insufficient to constitute ‘sufficient cause’ within the meaning of Section 5 of the Limitation Act.

19. It is well settled that a mere allegation of negligence on the part of counsel cannot, by itself, furnish a ground to condone long and inordinate delay. A litigant owes a duty to remain vigilant with regard to his own rights and is equally expected to exercise diligence in respect of judicial proceedings instituted at his instance. A party cannot be permitted to cast the entire blame upon counsel and, thereafter, disown such counsel at convenience in order to seek relief. Therefore, in the absence of due diligence on the part of the litigant, mere attribution of negligence to previous counsel cannot by itself justify condonation of delay of such magnitude.

20. It is equally settled that delay is not to be excused as a matter of generosity, and that the cause of substantial justice is not advanced by occasioning prejudice to the opposite party. The Petitioners have failed to establish that they prosecuted the matter with reasonable diligence, and this essential requirement for condonation of delay remains unsatisfied in the present case.

21. The material placed on record further reflects that the application under Order IX Rule 9 of the CPC itself came to be dismissed on 22.09.2014 on account of non-payment of costs, despite multiple opportunities having been granted by the Trial Court. Considerable indulgence had already been shown by the Trial Court on several occasions, subject to payment of costs; however, such costs were still not deposited before the Trial Court.

22. The Impugned Order has, thus, duly considered the entire factual matrix, the applicable statutory framework and the conduct of the Petitioners throughout the proceedings.

23. In view of the foregoing, this Court finds no ground to interfere with the Impugned Order. Accordingly, the present Petition, along with the pending application, is dismissed. There shall be no order as to costs.

TEJAS KARIA, J MAY 11, 2026 HK