Walnut Pictures and Ors. v. Rajyesh Patni

14. The impugned order reveals that process fee was filed by the respondent on 27.07.2023 and as per the report of Ahlmad, the summons were issued on 28.07.2023. Mode by which summons were dispatched is not available on record so much so the original postal receipts are also not on record. However, the register maintained by the Ahlmad shows that summons were handed over to the Nazarat branch on 31.07.2023 and the Registered Cover [‘RC’] was dispatched on 17.08.2023.

15. Even though the petitioners claim that summons were served on 24/25.08.2023, the learned Trial Court assumed that petitioners must have been served within 2-3 days from the date the RC was dispatched i.e. 17.08.2023 and assumed the date of service to be 20.08.2023. Admittedly, the WS was not filed within 30 days from the said date of service of summons, but the same was filed before the expiry of extended period of 90 days.

16. Dealing with the question of condonation of delay as provided in the Limitation Act, 1963, this Court in the case of Ather Ali and Anr vs. Mohd Shafi, (Deceased) Through AR Mohd. Akbar [2024 SCC Online Del 7495], laid down the principles as extracted below:-

6.[1] In the case of Ramlal vs Rewa Coalfields Ltd., AIR 1962 SC 361, the Hon'ble Supreme Court of India observed thus:

6.[2] In the case of Finolux Auto Pvt. Ltd. Vs Finolex Cables Ltd., 136(2007) DLT 585(DB), a Division Bench of this Court held thus:

6.[3] In the case of Pundlilk Jalam Patil (dead) by LRs vs Executive Engineer Jalgaon Medium Project, (2008) 17 SCC 448, the Hon'ble Supreme Court of India held that basically the laws of limitation are founded on public policy and the courts have expressed atleast three different reasons supporting the existence of statutes of limitation, namely (i) that long dormant claims have more of cruelty than justice in them, (ii) that a defendant might have lost the evidence to dispute the stated claim, and (iii) that persons with good causes of action should pursue them with reasonable diligence. It was observed that the statutes of limitation are often called as statutes of peace in so far as an unlimited and perpetual threat of limitation creates insecurity and uncertainty which are essential for public order. 6.[4] In the case of Lanka Venkateshwarlu vs State of Andhra Pradesh, (2011) 4 SCC 363, the Hon'ble Supreme Court of India observed thus:

The concepts of "liberal approach" and "reasonableness" in the exercise of discretion by the courts in condoning delay were considered by the Hon'ble Supreme Court of India in the case of Balwant Singh vs Jagdish Singh, (2010) 8 SCC 685, holding thus:

17. The Hon’ble Supreme Court in case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors [(2013) 12 SCC 649], after referring to the earlier decisions laid down the following principles as extracted below:- ““21.[1] (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. 21.[2] (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. 21.[3] (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.[4] (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. 21.[5] (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.[6] (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. 21.[7] (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.[8] (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 delineation. 21.[9] (ix) The conduct, behaviour 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.

21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11 (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.

21.12 (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.

21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: - 22.[1] (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.[2] (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.[3] (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.[4] (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”

18. In view of the principles laid down by the Hon’ble Supreme Court in the case of Esha Bhattacharjee (Supra), the application for condonation of delay is not to be dealt in a routine manner. Yet there should be a liberal, pragmatic, justice oriented and non-pedantic approach while dealing with such an application and the Court has to be mindful of distinction between inordinate delay and delay of short duration.

19. In the case of Collector, Land Acquisition, Anantnag and Anr vs Mst. Katiji and Ors [(1987) 2 SCC 107], the Hon’ble Supreme Court laid down the approach that needs to be followed by the hierarchy of the courts. The relevant principles laid down by the Hon’ble Supreme Court are extracted below:-

“sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

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

2. 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 day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. 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.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala 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. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the “State” which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the “State” is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as timebarred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.”

20. Coming back to the present case, the Court finds that even though the WS has not been filed within the stipulated 30 days period, the same was filed within the extended window of 90 days. Petitioners may not have explained each day’s delay, but have referred to various factors which caused delay in filing the WS viz petitioners being the residents of Mumbai had to arrange the advocate in Delhi for filing the WS, unavailability of the AR to sign the statement of truth and other documents for certain days.

21. The application for condonation of delay should have been construed liberally so as to ensure that lis between the parties is decided on merits rather than technicalities. The learned Trial Court should have adopted a pragmatic and justice oriented approach while dealing with such application.

22. For the delay caused on account of the written statement not having been in filed in 30 days time, petitioners could have been subjected to cost.

23. Thus viewed, the impugned order dated 21.05.2024 is set aside subject to petitioners paying to the respondent cost of Rs. 30,000/within two weeks from today. Upon payment of cost, the WS already filed by the petitioners be taken on record.

24. The petition is accordingly disposed of alongwith pending application in terms of aforesaid order.

RAVINDER DUDEJA, J. JANUARY 21, 2025