Vs. M. Krishnamurthy  INSC 459 (3 September 1998)
Ahmad, K.T. Thomas., Thomas J.
for the apparently inordinate delay in moving an application was accepted by
the trial court under Section 5 of the Limitation Act, 1963, but the High Court
in revision reversed the finding and consequently dismissed the motion. That
order of the High Court has given rise to these appeals.
barely needed for these appeals are the following:
for declaration of title and ancillary reliefs filed by the respondent was
decreed ex-parte on 28.10.1991. Appellant, who was defendant in the suit, on
coming to know of the decree moved an application to set it aside. But the
application was dismissed for default on 17.02.1993. Appellant moved for having
that order set aside only on August 19, 1995
for which a delay of 883 days was noted. Appellant also filed another
application to condone the delay by offering an explanation which can be summarized
engaged an advocate (one Sri MS Rajith) for making the motion to set the ex-parte
decree aside but the advocate failed to inform him that the application was
dismissed for default on 17.2.1993. When he got summons from the execution side
on 5.7.1995 hye approached his advocate but he was told that perhaps execution
proceedings would have been taken by the decree holder since there was no stay
against such execution proceedings. On the advice of the same advocate, he
signed some papers including a Vakalatnama for resisting the execution
proceedings, besides making a payment of Rupees Two Thousand towards advocate's
fees and other incidental expenses. But the fact is that the said advocate did
not do anything in the court even thereafter - On 4.8.1995 the execution
warrant was issued by the court and he became suspicious of the conduct of his
advocate and hence rushed to the court from where he got the disquieting
information that his application to set aside the ex-parte decry stood dismissed
for default as early as 17.2.1993 and that nothing was done in the court
thereafter on his behalf. He also learned that his advocate has left the
profession and joined as legal assistant of MS Maxworth Orcheads India Limited.
Hence he filed the present application for having the order dated 7.2.1993 set
did not stop with filing the aforesaid application. He also moved the District
Consumer Disputes Riderless Forum, Madras North ventilating his grievance and
claiming a compensation of rupees on lakh as against his erstwhile advocate.
The said forum passed final order directing the said advocate to pay a
compensation of Rs. Fifty thousand to the appellant besides a cost of Rs. Five
the trial court was pleased to accept the aforesaid explanation and condoned
the delay a single Judge of the High Court of Madras who heard the revision,
expressed the view that the delay of 883 days in filing the application has not
been properly explained. Hence the revision was allowed and trial court order
was set aside.
application for review was made, but that was dismissed.
reasoning of the learned single Judge of the High Court for reaching the above
conclusion is that the affidavit filed by the appellant was silent as to why he
did not meet his advocate for such a long period. According to the learned
the appellant was careful enough to verify about the stage of the proceedings
at any point of time and had he been misled by the counsel then oily it could
have been said that due to the conduct of the counsel the party should not be penalised."
Learned single judge then observed that when the party is in utter negligence,
he cannot be permitted to blame the counsel. Learned single judge has further
perusal of the affidavit does not reveal any diligence on the part of the
respondent in the conduct of the proceedings. When already the suit has been
decreed ex-parte, the respondent ought to have been more careful and diligent
in prosecuting the matter further. the conduct of the respondent clearly
reveals that at any point of time, he has not relished his responsibility as a
litigant." Appellant's conduct does not on the whole warrant to castigate
him as an irresponsible litigant. What he did in defending the suit was not
very much far from what a litigant would broadly do. Of course, it may be said
that he should have been more vigilant by visiting his advocate at short
intervals to check up the progress of the litigation. But during these days
when everybody is fully occupied with his own avocation of life an omission to
adopt such extra vigilance need not be used as a ground to depict him as a
litigant not aware of his responsibilities, and to visit him with drastic
axiomatic that condonation of delay is a matter of discretion of the court
Section 5 of the Limitation Act does not say that such discretion can be
exercised only if the delay is within a certain limit.
of delay is no matter, acceptability of the explanation is the only criterion.
Sometimes delay of the shortest range may be uncondonable due to want of
acceptable explanation whereas in certain other cases delay of very long range
can be condoned as the explanation thereof is satisfactory. Once the court
accepts the explanation as sufficient it is the result of positive exercise of
discretion and normally the superior court should not disturb such finding,
much less in reversional jurisdiction, unless the exercise of discretion was on
whole untenable grounds or arbitrary or perverse. But it is a different matter
when the first cut refuses to condone the dela. In such cases, the superior cut
would be free to consider the cause shown for the delay afresh and it is open
to such superior court to come to its own finding even untrammeled by the
conclusion of the lower court.
reason for such a different stance is thus: The primary function of a court is
to adjudicate the dispute between the parties and to advance substantial
justice. Time limit fixed for approaching the court in different situations in
not because on the expiry of such time a bad cause would transform into a good
of limitation are not meant to destroy the right of parties. They are meant to
see that parties do not resort to dilatory tactics, but seek their remedy
promptly. the object of providing a legal remedy is to repair the damage caused
by reason of legal injury. Law of limitation fixes a life-span for such legal
remedy for the redress of the legal injury so suffered. Time is precious and
the wasted time would never revisit. During efflux of time newer causes would
sprout up necessitating newer persons to seek legal remedy by approaching the
courts. So a life span must be fixed for each remedy. Unending period for
launching the remedy may lead to unending uncertainty and consequential
anarchy. Law of limitation is thus founded on public policy. It is enshrined in
the maxim Interest reipublicae up sit finis litium (it is for the general
welfare that a period be putt to litigation). Rules of limitation are not meant
to destroy the right of the parties. They are meant to see that parties do not
resort to dilatory tactics but seek their remedy promptly. The idea is that
every legal remedy must be kept alive for a legislatively fixed period of time.
court knows that refusal to condone delay would result foreclosing a suitor
from putting forth his cause.
is no presumption that delay in approaching the court is always deliberate.
This Court has held that the words "sufficient cause" under Section 5
of the Limitation Act should receive a liberal construction so as to advance
Administrator, Howrah Municipality [AIR 1972 SC 749].
must be remembered that in every case of delay there can be some lapse on the
part of the litigant concerned. That alone is not enough to turn down his plea
and to shut the door against him. If the explanation does not smack of mala
fides or it is not put forth as part of a dilatory strategy the court must show
utmost consideration to the suitor. But when there is reasonable ground to
think that the delay was occasioned by the party deliberately to gain time then
the court should lean against acceptance of the explanation. While condoning
delay the Could should not forget the opposite party altogether. It must be
borne in mind that he is a looser and he too would have incurred quiet a large
litigation expenses. It would be a salutary guideline that when courts condone
the delay due to laches on the part of the applicant the court shall compensate
the opposite party for his loss.
this case explanation for the delay set up by the appellant was found
satisfactory to the trial court in the exercise of its discretion and the High
Court went wrong in upsetting the finding, more so when the High Court was exercising
reversional jurisdiction. Nonetheless, the respondent must be compensated
particularly because the appellant has secured a sum of Rs. Fifty thousand from
the delinquent advocate through the Consumer Disputes Riderless Forum. We,
therefore, allow these appeals and set aside the impugned order by restoring
the order passed by the trial court but on a condition that appellant shall pay
a sum of Rupee Ten thousand to the respondent (or deposit it in this court
within one month from this date.
appeals are disposed of accordingly.