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Misc (j) Case No. 18/2015
DATE
27.07.2016.
SIGNATURE
ORDER
Both sides are duly represented. I have heard
Ld. Counsels for both the sides.
THIS MISC (J) CASE has arisen out of a
petition filed U/S 5 of the Indian Limitation Act.
Praying for consider the delay of 60 days and accept
the Petition filed U/O. 9 Rule 13 of CPC.
The Opp. Party was issued notice to appear
and filed objection if any. The Opp. Party appeared
and filed written objection on 18/06/2016. I have
heard learned counsels for both the sides on the prayer
of temporary injunction and objection thereof.
Brief fact of the case is that this Court passed
an Ex-parte Judgment and Decree in M. S. 19/2011 on
22.12.2014. The Petitioner engaged lawyer Mr.
Devendra Kr. shah and subsequently another lawyer
Mr. Javed Ahmed Khan, Advocate, Dibrugarh Bar
Association. The Petitioner received the certified copy
on 24.02.2015 and his lawyer Mr. Khan advised him
over telephone to file appeal before the Hon’ble
Gauhati High Court and accordingly the papers are
sent through Manoj Shah, Advocate to Mr. Ravi
Mishra, Advocate who is the junior lawyer to Mr. P. J.
Saikia, Advocate of Hon’ble Gauhati High Court. But
they returned the papers with instruction to file the
Appeal in Dibrugarh, which the Petitioner received on
05.03.2015. In the mean time, from 03.03.2015, the >-----------
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Misc (j) Case No. 18/2015
27.07.2016. Petitioner was suffering from severe back pain as such
could not contacted any lawyer and when he got some
relief on 20.03.2015 he contacted Mr. Shyam Dutta,
Advocate, Dibrugah Bar Association who informed
him that his lawyer stopped taking steps in the suit
while the suit was fixed for cross examination of the
witnesses but the same was not disclosed by his earlier
lawyer rather regularly accepted the legal fee. The
Petitioner has submitted Medical Report being
annexure Nos. 1 & 2. For the aforesaid reason no
petition for setting aside Ex-parte Decree could not be
filed within 22.01.2015 hence there is 60 days delay in
filling a petition under O. 9 R. 13 of CPC. There is no
wilful negligence and delay on the part of the
Petitioner for which the Petitioner is paying to
consider his case for the aforesaid circumstances and
allow him to contest the suit setting aside the
Judgment and Decree passed by the Hon’ble Court.
Now the petitioner has prayed for consider
the delay of 60 days and accept the Petition filed U/O.
9 Rule 13 of CPC.
The Opp. Party has filed written objection on
18/06/2016. By filing the written objection, the Opp.
Party has stated that the petition is not maintainable,
misleading and barred by limitation which does not
disclosed any valid ground for considering the delay >-----------
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Misc (j) Case No. 18/2015
27.07.2016. of 60days for injunction. The petition is speculative
and it does not verified nor affidavit has been
submitted in accordance with law. Denying some
averments of the petition the Op. Party submits that
the Petitioner has totally and wilfully neglected to
attend the Court with malafide intention to delay the
disposal of the suit even after filling Written
Statement. The Petitioner number of times submitted
compromise proposal to settled the outstanding at the
Bank but failed to do so as per terms and conditions
thereof. The Petitioner has already contested the case
by filling written statement and thereafter, with
malafide intention neglected to take part in cross
examination. As such the Petitioner is not entitled any
relief and pleaded to reject the petition of the
Petitioner with heavy cost.
I have head ld. Counsel for both the sides.
Perused the case record. In this context I want to note
the observations of the Hon’ble Supreme Court on
Sec. 5 of Limitation Act.
In case of
Collector Land Acquisition, ...
vs Mst. Katiji & Ors on 19 February, 1987
citations: 1987 AIR 1353, 1987 SCR (2) 387.
The Honourable
Supreme Court observed
that the legislature had had conferred the power to
condone delay by enacting section 5 of the Limitation
>-----------
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Misc (j) Case No. 18/2015
27.07.2016. Act in order to enable the courts to do substantial
justice to the parties by disposing of matters on merits.
The expression "sufficient cause" employed by the
legislature is adequately elastic to enable the courts to
apply the law in a meaningful manner which survives
the ends of justice - that being the life purpose of the
existence of the institution of courts. The Supreme
Court observed that:
"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
>-----------
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Misc (j) Case No. 18/2015
27.07.2016. 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."
The Supreme Court in S. Ganesharaju (supra)
held that the expression "sufficient cause" as
appearing in section of the Limitation Act has to be
given a liberal construction so as to advance
substantial justice. Unless the respondents are able to
show malafide in not approaching the court within the
period of limitation, generally as a normal rule, delay
should be condoned. The trend of the courts while
dealing with the matter with regard to condonation of
delay is tilted more towards condoning the delay and
directing the parties to contest the matter on merits, >-----------
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Misc (j) Case No. 18/2015
27.07.2016. meaning thereby that such technicalities have been
given a go-by. The Supreme Court held that the rule of
limitation is not meant to destroy or foreclose the
rights of parties. They are meant to see that the parties
do not resort to dilatory tactics to seek their remedy
promptly. In para 14 of the said decision, the Supreme
Court observed:
14. We are aware of the fact that refusal to condone
delay would result in foreclosing the suitor from
putting forth his cause. There is no presumption that
delay in approaching the court is always deliberate. In
fact, it is always just, fair and appropriate that matters
should be heard on merits rather than shutting the
doors of justice at the threshold. Since sufficient cause
has not been defined, thus, the courts are left to
exercise a discretion to come to the conclusion
whether circumstances exist establishing sufficient
cause. The only guiding principle to be seen is
whether a party has acted with reasonable diligence
and had not been negligent and callous in the
prosecution of the matter. In the instant case, we find
that appellants have shown sufficient cause seeking
condonation of delay and same has been explained
satisfactorily."
I may take note of another decision of the
Supreme Court in Ram Nath Sao @ Ram Nath Sahu
>-----------
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Misc (j) Case No. 18/2015
27.07.2016. and Others Vs. Gobardhan Sao and Others, (2002) 3
SCC 195. In this decision, the Supreme Court
observed:
"12. 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
>-----------
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Misc (j) Case No. 18/2015
27.07.2016. 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 our case in hand the Petitioner has taken
the plea that due to ailment of the Petitioner he was
not in a position to contact his counsel. Only on
20.03.2015 he could contact his counsel Mr. Shyam
Dutta. In support of his ailment, the Petitioner has
annexed
one
certificate
of
his
ailment.
Also
considering the ends of justice into render substantial
justice I find it proper to condone the delay.
Accordingly, petition filed under section 5 of
limitation Act is hereby allowed on contest.
Miss cases disposed of accordingly.
Civil Judge
Dibrugarh