Hiraman Nivrutti Tupe v. Sou. Vijaymala Vinayak Bazare

16) In ordinary circumstances, High Court would not interfere in exercise of discretion by the Trial Court while condoning the delay in filing proceedings. The Courts are expected to exercise discretion in condoning the delay by considering the cause pleaded and proved. In a case where the pleaded cause is found to be egregiously false, the Trial Court is not expected to condone the delay, nor the High Court is expected to excuse erroneous exercise of discretion by the trial court. In a case where High Court finds that the exercise of discretion is perverse and that the Trial Court has applied wrong parameters and has assumed erroneous factual position contrary to the evidence on record, interference in exercise of discretion would be warranted.

17) In the present case, the Trial Court ought to have appreciated that Vijaymala approached it with unclean hands and and her pleaded case is found to be false in two aspects of (i) the person who was allegedly looking after her affairs in the Suit and (ii) the date on which she allegedly acquired knowledge of the decree. The Apex Court in Maniben Devraj Shah V/s. Municipal Corporation of Brihan Mumbai[1] has held that the expression ‘sufficient cause’ needs to be decided in the factual matrix in the given case and what colour the said expression acquires would largely depend on bonafide nature of the explanation. It is further held that if the explanation pleaded by the Applicant is found to be concocted, exercise of discretion in condoning the delay must legitimately be declined. The Apex Court has held in paragraph 24 as under:-

24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. (emphasis added)

18) In the present case, upon being convinced that the pleaded case of Vijaymala is concocted, and that her very approach to the Court for seeking setting aside exparte decree is not bonafide and application for condonation of delay is filed with oblique motive of delaying execution of preliminary decree for partition, this Court would be failing in its duty by not setting aside the ex facie erroneous order passed by the Trial Court.

19) In Lanka Venkateshwarly (DEAD) by LRS V/s.Stateof Andhra Pradesh and Others[2] the Apex Court held that though the Courts need to adopt liberal approach in considering the application for condonation of delay, at the same time the Courts cannot ignore the principle of creation of a valuable right in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause. The Apex Court held in paragraphs 19 to 23 as under:-

19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors.

20. In N. Balakrishnan (1998) 7 SCC 123, this Court again reiterated the principle that “11.rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.”

21. In the case of Sardar Amarjit Singh Kalra (2003) 3 SCC 272, this Court again emphasized that provisions contained in the Order 22 CPC were devised to ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in the Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of justice. It was further observed that:

22. In Mithailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini & Ors, (2003) 10 SCC 691, this Court again reiterated that:

It was further observed as follows:-

23. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh

"25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation." "26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise(sic a lis). These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

20) In Esha Bhattacharjee v. Raghunathpur Nafar Academy[3], the Apex Court has restated the settled principles governing the field of condonation of delay after survey of various past decisions and has also added few principles. The Apex Court has held as under:

21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, nonpedantic 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. (2013)12 SCC 649

21.7. (vii) The concept of liberal approach has to encapsulate 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 scrutinised 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 haphazard 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 nonchalant manner requires to be curbed, of course, within legal parameters. xxx xxx

31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice.

32. The plea of lack of knowledge in the present case really lacks bona fides. The Division Bench of the High Court has failed to keep itself alive to the concept of exercise of judicial discretion that is governed by rules of reason and justice. It should have kept itself alive to the following passage from N. Balakrishnan [N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123: AIR 1998 SC 3222]:

We have painfully restated the same.

21) Keeping in mind the above broad principles, it is seen that the pleaded case of Vijaymala is concocted. Her plea of lack of knowledge is not bonafide. I am therefore of the view that considering the conduct of Respondent No.1-Vijaymala, where she has repeatedly changed her story about the person, who used to look after her affairs in the Suit as well as the date of acquisition of knowledge of passing of the decree, I am convinced that claim of Respondent No.1 is not bonafide. She has approached the Trial Court with a false case that Defendant No.4- Kantilal was looking after affairs of the Suit on her behalf. She sought to blame Defendant No.4 -Kantilal for the purpose of condoning the delay. It is another thing that Defendant No.4- Kantilal has opposed M.A. No.105 of 2009 by contesting her claim that he was looking after affairs of Suit for Vijaymala.

22) Also, the objective behind filing application for setting aside ex-parte decree is more than apparent. The proceedings are vexatious in nature and are filed only for the purpose of ensuring that the decree is not executed and the proceedings are kept in continuous stage of litigation. This Court needs to be mindful of the fact that the Suit has been instituted in the year 1996 and the decree passed therein is not executed despite passage of 29 long years.

23) The fervent plea of Mr. Wakankar that the Court has merely condoned the delay as of now and that the issue of bonafides can be considered while deciding the application for setting aside the exparte decree does not appeal to this Court. Once the cause pleaded in the application is found to be concocted, the application for condonation of delay clearly deserved rejection. Condonation of delay would open the doors for Vijaymala to further vex the Plaintiff by seeking to set aside exparte decree, then press her review application for setting aside exparte order, then file written statement in the suit and take the Plaintiff on a ride for a lengthy round of trial in a suit instituted 29 years ago.

24) As observed above, Vijaymala is assured of some share in the suit property. She has been extremely negligent in defending the Suit. Plaintiff cannot be made to wait endlessly on account of negligence shown by Respondent No.1-Vijaymala. She is also found to have raised false claims before the Court. Instead of noticing falsity in her pleaded case, which was more than apparent, the Trial Court has proceeded to condone the delay by erroneously assuming that in the cross-examination also, she was consistent in her pleaded case of Defendant No.4-Kantilal looking after the Suit on her behalf. As a matter of fact, she admitted to the contrary in the cross-examination. The findings recorded by the Trial Court thus suffer from vice of perversity. Order dated 19 April 2016 is thus indefensible and liable to be set aside.

25) Civil Revision Application accordingly succeeds and I proceed to pass the following order:-

(i) Order dated 19 April 2016 passed by the Trial Court in M.A. No.105 of 2009 is set aside.

(ii) Consequently M.A. No.105 of 2009 is dismissed.

26) Civil Revision Application is allowed. There shall be no orders as to costs. [SANDEEP V. MARNE, J.] Designation: PA To Honourable Judge