Ram Nath
Sao @ Ram Nath Sahu & Ors Vs. Gobardhan Sao & Ors [2002] Insc 94 (27
February 2002)
M.B.
Shah & B.N. Agrawal B.N.Agrawal, J.
Leave
granted.
Order
impugned in this appeal has been passed by a Division Bench of the Jharkhand
High Court in Letters Patent Appeal upholding order passed by learned Single
Judge whereby regular First Appeal filed by the defendants against decree
passed in a partition suit involving approximately 116 acres of land allowing
claim of the plaintiffs has been disposed of holding that the entire appeal has
become incompetent as during the pendency of the appeal, appellant
No.2-Kashinath Sao(defendant No. 2), appellant No.3-Buchua Devi (defendant
No.3), appellant No.22-Guru Dayal Sao(defendant No. 19) and appellant No.
41-Ugni Devi(defendant No. 35) expired and as no steps for substitution of
their heirs and legal representatives were taken within the time prescribed,
the same abated and application for substitution of their heirs after setting
aside abatement and condonation of delay was rejected after recording finding
that no sufficient cause was shown either for condonation of delay or setting
aside abatement.
The
short facts are that when First Appeal No. 307 of 1989(R) was listed for
hearing, appellants' counsel wrote a letter intimating the client about listing
of the matter whereupon one of the appellants in the appeal came on 18th
September, 1998, met his counsel and during the course of discussion, it
transpired that appellant Nos. 2,3,22 and 41 had already expired whereupon the
counsel instructed the client to go to the village and bring the Vakalatnama
from the heirs and legal representatives of the deceased persons for filing
substitution application. After obtaining the Vakalatnama, the client came back
on 20th September, 1998 and thereafter on 24th September, 1998, substitution
application was filed making a prayer therein for expunging the name of
appellant No.2 and making a note that he died on 10th April, 1997 leaving
behind appellant Nos. 5, 9 and 10 as his heirs and legal representatives who
were already on the record, besides a daughter Sheela Devi for whom prayer was
made for bringing her on the record in place of the deceased appellant as it is
well settled that in such an eventuality, left out heirs can be brought on the
record at any time irrespective of the period of limitation. Further prayer was
made in that application for substitution of the heirs and legal
representatives named therein of appellant Nos, 3, 22 and 41 after condonation
of delay in filing the application for setting aside abatement and setting
aside abatement. Appellant No.3 died on 19th December, 1997, No. 22 died in the month of
February, 1993 and No. 41 died in the year 1995. In the said appeal, there were
41 appellants belonging to different families, villages and police stations.
Some of the appellants who were contesting defendants were members of joint
family of the plaintiffs and the contesting defendants whereas others were
transferees. As some of the heirs of appellant No. 2 were already on the
record, his appeal did not abate and prayer for bringing on record one left out
heir was made for which there is no period of limitation. So far appellant No.3
is concerned, there was delay of 130 days in filing the application for
substitution. However, in relation to appellant No. 22, the delay was about
five years and in relation to appellant No. 41, the delay was about three
years, both of whom were transferees and belonged to villages different than
the village and police station in which members of joint family of the
plaintiffs and contesting defendants resided. The appellants before the High
Court were rustic and illiterate villagers and undisputedly no sooner their
lawyer advised, steps were taken with utmost expedition without any loss of
time.
In the
said appeal on behalf of the respondents, a counter affidavit was filed to the
aforesaid petition for substitution in which it was not averred that the delay
was mala fide, dilatory and/or intentional. Further, there was no denial that
all the appellants were rustic villagers and except appellant No.6, all were
illiterate.
A
learned Single Judge of Ranchi Bench of the Patna High Court as it then
existed, by order dated 18th November, 1998 directed for expunging name of
appellant No.2 from the record, making a note that appellant Nos. 5,9 and 10
were already on the record as his heirs and legal representatives and impleading
the daughter who was not on the record. So far the prayer for substitution of
the heirs of appellant Nos. 3, 22 and 41 is concerned, the same was refused as
it was held that no sufficient cause was shown for condonation of delay in
filing the application to set aside abatement and setting aside abatement.
Against the said order, the appellants preferred a Letters Patent Appeal before
the Jharkhand High Court which was created by then, and the said appeal was
dismissed on 11th
January, 2001. Hence, this
appeal by special leave.
Shri Gaurav
Agrawal, learned counsel appearing on behalf of the appellants, who was
thoroughly ready both on facts as well as law, found out all the relevant
decisions on the point in issue and by placing the same with fairness,
submitted in support of this appeal that as the appellants, who were rustic and
illiterate villagers, belonged to different families, different villages within
different police stations and in the absence of anything to show that the delay
was mala fide, intentional or any dilatory tactics was adopted, the same should
have been condoned and abatement set aside as the expression 'sufficient cause'
should receive a liberal construction so as to advance substantial justice when
no negligence or inaction or want of bona fide is imputable to a party. On the
other hand, Shri Amarendra Sharan, learned Senior Counsel appearing on behalf of
the respondents, with his usual vehemence, submitted that the High Court was
quite justified in holding that no sufficient cause was made out for condonation
of delay and setting aside abatement and accordingly no interference with the
impugned order is called for in the exercise of discretionary powers of this
Court under Article 136 of the Constitution of India.
The
expression 'sufficient cause' within the meaning of Section 5 of the Limitation
Act, 1963 (hereinafter referred to as 'the Act'), Order 22 Rule 9 of the Code
of Civil Procedure (hereinafter referred to as 'the Code") as well as
similar other provisions and the ambit of exercise of powers thereunder have
been subject matter of consideration before this Court on numerous occasions.
In the
case of The State of West Bengal v. The Administrator, Howrah Municipality and
others (1972) 1 Supreme Court Cases 366, while considering scope of the
expression 'sufficient cause' within the meaning of Section 5 of the Act, this
Court laid down that the said expression should receive a liberal construction
so as to advance substantial justice when no negligence or inaction or want of
bona fide is imputable to a party.
In the
case of Sital Prasad Saxena (dead) by Lrs. v. Union of India and others AIR
1985 Supreme Court 1, the Court was dealing with a case where in a second
appeal, appellant died and application for substitution after condonation of
delay and setting aside abatement filed after two years by the heirs and legal
representatives was rejected on the ground that no sufficient cause was shown
and the appeal was held to have abated. When the matter was brought to this
Court, the appeal was allowed, delay in filing the petition for setting aside
the abatement was condoned, abatement was set aside, prayer for substitution
was granted and High Court was directed to dispose of the appeal on merits and
while doing so, it was observed that once an appeal is pending in the High
Court, the heirs are not expected to keep a constant watch on the continued
existence of parties to the appeal before the High Court which has a seat far
away from where parties in rural areas may be residing inasmuch as in a
traditional rural family the father may not have informed his son about the
litigation in which he was involved and was a party. It was further observed
that Courts should recall that "what has been said umpteen times that
rules of procedure are designed to advance justice and should be so interpreted
and not to make them penal statutes for punishing erring parties. " (Emphasis
added).
In the
case of Rama Ravalu Gavade v.Sataba Gavadu Gavade (dead) through LRs. and
another (1997) 1 Supreme Court Cases 261, during the pendency of the appeal,
one of the parties died. In that case, the High Court had refused to condone
the delay in making an application for setting aside abatement and set aside
abatement, but this Court condoned the delay, set aside abatement and directed
the appellate court to dispose of appeal on merit observing that the High Court
was not right in refusing to condone the delay as necessary steps could not be
taken within the time prescribed on account of the fact that the appellant was
an illiterate farmer.
In the
case of N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123,
there was a delay of 883 days in filing application for setting aside exparte
decree for which application for condonation of delay was filed. The trial
court having found that sufficient cause was made out for condonation of delay,
condoned the delay but when the matter was taken to the High Court of
Judicature at Madras in a revision application under Section 115 of the Code,
it was observed that the delay of 883 days in filing the application was not
properly explained and it was held that the trial court was not justified in
condoning the delay resulting into reversal of its order whereupon this Court
was successfully moved which was of the view that the High Court was not
justified in interfering with order passed by trial court whereby delay in
filing the application for setting aside exparte decree was condoned and
accordingly order of the High Court was set aside. K.T.Thomas, J., speaking for
the Court succinctly laid down the law observing thus in paras 8, 9 and 10 :
"8.
The 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 consequences.
9. It
is 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. Length of delay is no matter,
acceptability of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to a want of acceptable explanation
whereas in certain other cases, delay of a 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 revisional jurisdiction, unless the exercise of
discretion was on wholly untenable grounds or arbitrary or perverse. But it is
a different matter when the first court refuses to condone the delay. In such
cases, the superior court 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.
10. .
The
primary function of a court is to adjudicate the dispute between the parties
and to advance substantial justice. The time- limit fixed for approaching the
court in different situations is not because on the expiry of such time a bad
cause would transform into a good cause." [ Emphasis added] The Court
further observed in paragraphs 11, 12 and 13 which run thus:- "11. Rules
of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such
legal remedy for the redress of the legal injury so suffered. Time is precious
and wasted time would never revisit. During the efflux of time, newer causes
would sprout up necessitating newer persons to seek legal remedy by approaching
the courts. So a lifespan must be fixed for each remedy. Unending period for
launching the remedy may lead to unending uncertainty and consequential
anarchy. The 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 put to litigation). Rules of limitation are
not meant to destroy the rights 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.
12. A
court knows that refusal to condone delay would result in foreclosing a suitor
from putting forth his cause. There 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 substantial justice vide Shakuntala
Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator,
Howrah Municipality (1972) 1 SCC 366.
13. It
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 the delay, the court should not forget the
opposite party altogether. It must be borne in mind that he is a loser and he
too would have incurred quite large litigation expenses. " [ Emphasis
added] Thus it becomes plain that the expression "sufficient cause"
within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or
any other similar provision should receive a liberal construction so as to
advance substantial justice when no negligence or inaction or want of bona fide
is imputable to a party. In a particular case whether explanation furnished
would constitute "sufficient cause" or not will be dependant upon
facts of each case.
There
cannot be a straitjacket formula for accepting or rejecting explanation
furnished for the delay caused in taking steps. But one thing is clear that the
courts should not proceed with the tendency of finding fault with the cause
shown and reject the petition by a slipshod order in over jubilation of
disposal drive.
Acceptance
of explanation furnished should be the rule and refusal an exception more so
when no negligence or inaction or want of bona fide can be imputed to the
defaulting party. On the other hand, while considering the matter the courts
should not lose sight of the fact that by not taking steps within the time
prescribed a valuable right has accrued to the other party which should not be
lightly defeated by condoning delay in a routine like manner. However, by
taking a pedantic and hyper technical view of the matter the explanation
furnished should not be rejected when stakes are high and/or arguable points of
facts and law are involved in the case, causing enormous loss and irreparable
injury to the party against whom the lis terminates either by default or
inaction and defeating valuable right of such a party to have the decision on
merit. While considering the matter, courts have to strike a balance between
resultant effect of the order it is going to pass upon the parties either way.
In
view of the foregoing discussions, we are clearly of the opinion that on the
facts of present case, Division Bench of the High Court was not justified in
upholding order passed by the learned Single Judge whereby prayers for condonation
of delay and setting aside abatement were refused and accordingly the delay in
filing the petition for setting aside abatement is condoned, abatement is set
aside and prayer for substitution is granted.
In the
result, the appeal is allowed, impugned orders passed by the High Court are set
aside and the matter is remitted back to the learned Single Judge for deciding
the First Appeal on merits in accordance with law. In the circumstances of the
case, we direct that the parties shall bear their own costs.
..J.
[
M.B.SHAH ] J.
[
B.N.AGRAWAL ] FEBRUARY
27, 2002.
Back