Full Text
HIGH COURT OF DELHI
Date of Decision: 01.08.2024
NEELAM @ GEETA .....Appellant
Through: Mr. Ram Bhardwaj, Advocate
Through: None
CM Appl.57382/2023[Seeking condonation of delay in filing CM Appl
57831/2023]
CM Appl 57383/2023[Seeking condonation of delay in re-filing CM
Appl 57831/2023]
JUDGMENT
1. The Appellant has filed CM APPL. 57382/2023, seeking condonation of delay of 43 days in filing the Application for restoration and CM APPL. 57383/2023 seeking condonation of delay of 248 in refiling the Application for restoration of the present Appeal, which was dismissed in default on 14.12.2022.
2. Both the Applications filed by the Appellant have been filed under Section 151 of the Code of Civil Procedure, 1908. Notice in these Applications was issued by a Coordinate Bench of this Court on 06.11.2023.
3. Learned Counsel for the Appellant submits that the delay was due to the fact that the client was obtaining legal advice. No other reason has been urged before the Court.
4. Although, the correct provision of law was not invoked by the Appellant, this Court proceeded to examine both these Applications in terms of provisions of Section 5 of the Limitation Act, 1963, [hereinafter referred to as “the Act”] which reads as follows:
4.[1] The law on condonation of delay is well-settled. The Supreme Court in Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd.1, while clarifying Section 5 of the Act has held that if sufficient cause is shown, the Court is given the discretion to condone delay provided and that this power should be exercised to advance substantial justice. The exercise of power of the Court under Section 5 of the Act has been clarified in the following terms:
(1962) 2 SCR 762 court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan [(1890) ILR 13 Mad 269] “Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause’ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.” 4.[2] The expression ‘sufficient cause’ appearing in Section 5 of the Act has been aptly explained by the Supreme Court in Basawaraj and Another v. Special Land Acquisition Officer[2], which held that: “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 furnished, can be decided on the facts of a particular case and no straitjacket formula is possible…”
5. In the case at hand, the Applications before this Court are Applications for delay in filing and delay in re-filing the Application for restoration of the Appeal. Both the Applications filed for condonation of delay are unsubstantial. The grounds for condonation of delay as set out in the Application for condoning the delay in filing the application for restoration of the Appeal read as follows: “….
2. It is submitted that there is delay of 43 days in filing of the present petition for Restoration.
3. It is humbly submitted that the appellant in order to effectively contest the appeal has taken legal advises on available remedies against the impugned order passed by Ld. Trial Court and the order dated 14.12.2022 passed by this Hon’ble Court and during said duration some delay was caused also in getting the proper case records from the Ld. Trial Court and clarification relating to case record of Ld. Trial court.
4. That the delay in filing the present petition is neither intentional nor wanton, kindly condone the delay in the interest of justice and equity.” 5.[1] The exact same reason is set out in the Application for condonation of delay in refiling the application for restoration of the Appeal as well: “….
2. It is submitted that there is delay of 248 days in re-filing of the present Restoration petition.
3. It is humbly submitted that the appellant in order to effectively contest the appeal has taken legal advises on available remedies against the impugned order passed by Ld. Trial Court and the order dated 14.12.2022 passed by this Hon’ble Court and during said duration some delay was caused also in getting the proper case records from the Ld. Trial Court and clarification relating to case record of Ld. Trial court.
4. That the delay in re-filing the present petition is neither intentional nor wanton, kindly condone the delay in the interest of justice and equity.”
6. The only two grounds that have been set out in these Application for condonation of delay in filing of the application for restoration of the Appeal are, that legal advises [sic: advise] was being sought and that time was taken in getting case papers. These grounds/reasons have been reproduced verbatim in the Application for condonation of delay in re-filing the Application for restoration of the Appeal as well. In addition to being repetitive, neither of these reasons can be termed as an explanation for the cause of delay. In fact, these show a clear inaction and lack of bona fides on the part of the Appellant.
7. The record shows that the prosecution of the Appeal right from its inception, has been fraught with negligence. The Coordinate Bench of this Court found that the matter was not prosecuted by the Appellant after the filing of the Appeal. There was no appearance on behalf of the Appellant except for one date in two years. A perusal of the order dated 14.12.2022 which dismissed the Appeal in the present case, also sets this out in the following terms: “1. The order dated 02.11.2022 passed by the learned Joint Registrar indicates that there has been no appearance on behalf of the Appellant since 31.08.2020, save and except on 01.09.2022 when one Mr. Ram Bhadouria, Advocate had appeared on behalf of Appellant and sought time to file rejoinder. Perusal of order dated 01.09.2022, indicates that last opportunity was granted to the Appellant to file rejoinder, however, neither the rejoinder was filed nor there was any appearance on behalf of the Appellant.
2. Even today, there is no appearance on behalf of the Appellant.
3. It appears that the Appellant is not interested in prosecuting the appeal.
4. Appeal along with pending applications is dismissed for nonprosecution.”
8. Ordinarily, the Court will not refuse to entertain an Application for condonation of delay, especially where sufficient cause is shown. The proceedings in the present case of last four years show that the Appeal was prosecuted in a lackadaisical manner by the Appellant. Other than an appearance on the first date of hearing (31.03.2020) and on one or two occasions thereafter, there was no appearance for almost four years of hearings. After issue of notice, process fee was not filed by the Appellant for several dates. This situation continued throughout the Covid-19 pandemic with there being no appearance on behalf of the Appellant on the following dates: 31.08.2020, 22.01.2021, 05.03.2021, 08.09.2021, 18.11.2021, 17.01.2022, 29.03.2022, 01.04.2022 and 23.05.2022. The Appellant appeared once on 01.09.2022 and thereafter again did not appear on 02.11.2022 or on 14.12.2022. Thus, on 14.12.2022, the Appeal was dismissed for non-prosecution. Almost 11 months later, the Application for restoration is filed by the Appellant. Since, this Application was filed belatedly, two Applications for delay in filing and in re-filing were also filed. After the Court issued Notice in these Applications, the Appellant failed to appear on 25.07.2024.
9. Thus, the Appellant initially failed to prosecute his Appeal, thereafter, applications for restoration of appeal were also filed belatedly with only excuses, that it took time to take proper case records and clarifications from the Trial Court. Thus no actual explanation has been offered by the Appellant. In any event, this explanation cannot suffice for the delay in re-filing of 248 days.
10. In Sheo Raj Singh (Deceased) Through LRs. & Ors. v. Union Of India & Anr[3], the Supreme Court has held that the power of condonation of delay is a discretionary power that is available with the Courts and the exercise of such discretion is to be exercised on the ‘sufficiency of the cause shown’ and the ‘degree of acceptability of the explanation’. The Courts should adopt a pragmatic and liberal approach when dealing with condonation of delay. In most applications for condonation of delay, ‘excuses’ are given and not an ‘explanation’, which defeats the principle of public policy ‘Interest Reipublicae Ut Sit Finis Litium’ (it is for the general welfare that a period be put to litigation). It further provided that the length of delay to be condoned is immaterial. It was held that:
happened is not his fault, if it is really not his fault…
32. “An “excuse” is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an “excuse” would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher courts for adjudication.”
11. The Appellant has thus miserably failed to explain the delay in both the filing and re-filing of the Application seeking restoration of the Appeal. The Applications filed are bereft of any reasoning and do not show ‘sufficient cause’. The Appellant has shown a lackadaisical approach in presenting the case before this Court on multiple occasions. No explanation has even been attempted to be given. This Court finds that no cause much less sufficient cause has been made out for condoning the delay in the present case.
12. The law on limitation is “dura lex sed lex” therefore, the Appellant shall be subjected to the established procedure of the law, however harsh the law may be. After examining the Applications for condonation of delay and the conduct of the Appellant as set out above, this Court finds no reason to condone the delay in filing the Applications for restoration of the present Appeal.
13. The Applications are, accordingly, dismissed.
14. Consequently, the Application for restoration of the Appeal, CM APPL. 57381/2023 is also dismissed.
TARA VITASTA GANJU, J AUGUST 1, 2024 g.joshi Click here to check corrigendum, if any CORRECTED AND UPLOADED ON 16.08.2024