Shri H.K Shukla, Advocate for the appellants.

Shri S.K Jain, Advocate for the respondents.

2. Heard on I.A No. 1389/2010, an application under section 5 of Limitation Act for condonation of delay in filing the appeal.

3. The appeal, as per office report is barred by 460 days.

4. The averments made in the application are to the effect that against the impugned judgment and decree passed by first Appellate Court dated 24-7-2008, appellant had come to Gwalior for filing the appeal and had met with Advocate Shri Ramesh Gaur in District Court Campus Gwalior on 16th August, 2008. On assurance being given by said Advocate that appeal shall be filed promptly, the appellant handed over entire papers along with impugned judgment to him. Thereafter, he came back to his village. Thereafter, there was no communication from the counsel though plaintiffs/appellants were making efforts to contact the counsel on telephone to enquire about the progress of the case. According to plaintiffs, the counsel at later stage, informed him that appeal had been filed and stay application was kept pending by the High Court till the record is received. As such appellants were under the impression that appeal had been filed and the application for stay was pending consideration. But all of a sudden, appellants received summons from the executing Court calling upon them to remain present before this Court on 27-1-2010. Thereafter, appellants tried to contact their counsel Shri Ramesh Gaur, but there was no response from his end. Mobile phone of the counsel was also not working. Thereafter, appellant-Mohar Singh came to Gwalior on 4-1-2010 to enquire about the pendency of appeal. It was found that the counsel had died, therefore, appellants made a request to Shri H.K Shukla, Advocate to enquire about the status of the appeal and on enquiry it was found that no such appeal was filed or pending before the High Court. On advice of Shri Shukla, Advocate, appellant came back to his village on 8-1-2010 to obtain certified copy of the impugned judgment which was delivered to him on 12-1-2010. Thereafter, the appellant again contacted Shri Shukla, Advocate at Gwalior. The appellant was advised to bring photocopy of the plaint, written statement and other relevant papers from the local counsel at Raghogarh. Thereafter, the appellant again approached his Advocate at Raghogarh to hand over old available file papers, which could be collected by appellant from Raghogarh only on 22-1-2010. Thereafter, appellant came to Gwalior. Appeal was drafted on 23-1-2010, and the same was filed before this Court on 25-1-2010.

Heard.

5. The first Appellate Court has passed the impugned judgment and decree on 24-7-2008. It is alleged in the application that appellant had met an Advocate at Gwalior on 16-8-2008, who assured him that he would file the appeal in the High Court. Thereafter, appellants since the time handed over file containing relevant papers and impugned judgment, never contacted their counsel. After near about two years, it is alleged that on receiving summons from the Executing Court on 27-1-2010, appellants tried to find out the progress of the appeal. It is further alleged that when appellant Mohar Singh came to Gwalior for the said purpose, he was given to understand that Advocate Ramesh Gaur had expired.

6. Thereafter, he met Shri Shukla, Advocate. He was informed after due enquiry that no appeal was filed in the High Court and accordingly appeal was filed by Shri Shukla, Advocate. There is no death certificate or any affidavit of any of relative of Advocate Ramesh Gaur or junior Advocate working with him, on record to substantiate the aforesaid assertion as to when did he really die. From the sequence of facts in the application, it appears that the appellants have concocted a story to offer an explanation for avoidable long delay in filing the appeal. Hence, the explanation offered by the appellant for explaining delay of 460 days, is not at all found to be satisfactory in nature and therefore, there is no sufficient cause preventing the appellants to file the appeal within limitation.

7. Nature and scope of jurisdiction under section 5 of Limitation Act have been succinctly explained and laid down by the Apex Court in catena of decisions. For ready reference some of the judgments since year 1962 are being referred, to support the view being taken by this Court in the instant case. In the case of Ramlal v. Rewa Coalfields Ltd., 1962 MPLJ (S.C) 602 : AIR 1962 SC 361, Hon'ble Supreme Court in para 7 has held as under:—

“7. In construing section 5 (of the Limitation Act) it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.”

8. Further in the case of N. Balakrishnan v. M. Krishnamurty, (1998) 7 SCC 123, Hon'ble Supreme Court in paras 9, 11 and 13 has held as under:—

“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 untrammelled by the conclusion of the lower Court.

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 ut 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.

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. 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.”

9. Hon'ble Supreme Court in the case of P.K Ramachandran v. State of Kerala, (1997) 7 SCC 556, has held in para 6 as under:—

“6. law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.”

10. Hon'ble Supreme Court in a recent decision Maniben Devraj Shah v. Municipal Corporation Of Brihan Mumbai, (2012) 5 SCC 157 has held in para 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.”

11. On the touchstone of aforesaid consideration, the application filed under section 5 of Limitation Act needs to be addressed. Therefore, even if there is an inordinate delay but explanation offered is found to be bona fide and satisfactory in nature, same can be condoned and on the other hand, if the delay is short but the explanation offered is found to be lacking in bona fide, same cannot be accepted as sufficient cause to record satisfaction with regards to exercise discretionary jurisdiction under section 5 of Limitation Act.

12. True it is, section 5 of Limitation Act has been engrafted in the Limitation Act, 1963 in order to enable the Courts to do substantial justice between parties. As expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subseries the ends of justice. But at the same time, relativity of expression ‘sufficient cause’ in its application would largely depend on bona fide nature of the explanation.

13. The factual matrix of the case in hand has been considered by this Court. There is a delay of 460 days. There is no plausible explanation on record explaining the delay. The explanation offered is lacking in bona fides. The applicant appears to have concocted the story to offer explanation. As a matter of fact the applicant has been totally negligent in filing the appeal.

14. Even otherwise, after having perused the impugned judgment and decree passed by both the Courts below, it appears that both the Courts below have recorded concurrent findings of fact based on proper appreciation of evidence on record.

15. In view of the foregoing I.A is dismissed finding no satisfactorily explanation for the unreasonable delay of 460 days. Consequently, the appeal is also dismissed.

Appeal dismissed.