1 Court No. - 11 Case :- CIVIL REVISION No. - 132 of 2000 Petitioner :- Smt. Munni Devi Respondent :- Shiv Prakash @ Putan Petitioner Counsel :- Mohd. Saeed Respondent Counsel :- Raj Bahadur Yadav,S.K. Rastogi Hon'ble Anil Kumar,J.
List revised. None present on behalf of the respondents.
Heard Sri Mohd. Saeed, learned counsel for the revisionist and
perused the record.
Learned counsel for the revisionist submits that on 16.10.1986
respondent nos.1 to 3 of the present revision had filed a suit for
permanent injunction in the court of Munsif Purwa, Unnao, which was
registered as Regular Suit No.128 of 1986 (Shiv Prakash and others
Vs. Smt. Munni Devi and others). In the said suit the present revisionist
Smt. Munni Devi, who is respondent no.1, had taken a preliminary
objection to the effect that the suit filed by the respondent no.1 to 3 is
not maintainable before the trial Court in view of provisions as
provided under Section 331 of the U.P. Zamindari Abolition and Land
Reforms Act as such an issue no.1 had been framed by the trial court to
the said effect and after hearing the parties the trial court by order dated
21.1.2000 decided the said issues holding therein that the suit is
cognizable by the civil court.
The order dated 21.1.2000 was challenged by the present
revisionist before the District Judge, Unnao by way of revision under
Section 115 of C.P.C. as the said revision is barred by time so an
application for condonation of delay under Section 5 of the Limitation
Act supported by an affidavit had been filed and accordingly a Civil
Misc. Case No.136 of 2000, Smt. Munni Devi Vs. Shiv Prakash was
registered before the District Judge, Unnao.
By order dated 2.9.2000 District Judge, Unnao dismissed the
petitioner’s application for condonation of delay under Section 5 on the
ground that no sufficient reason had been shown for filing the revision
at a belated stage and further by the said order the Original Suit No.128
2
of 1986, Shiv Prakash and others Vs. Smt. Munni Devi was transferred
from the court of Civil Judge, Purwa, Unnao to Civil Judge (Junior
Division) North, Unnao.
The order dated 2.9.2000 passed by District Judge, Unnao in
Misc. Case No.136 of 2000 is challenge before this Court by way of
present revision.
Further this Court on 22.11.2000 has passed the following
order:-
“Admit.
Issue notice to opposite parties 1 to 4
returnable at an early date.
In the meantime, operation of the impugned
order dated 2.9.2000 passed by District Judge,
Unnao shall remain stayed consequently further
proceedings in Reg. Suit No.128 of 1986 pending
in the court of Civil Judge (Jr. Div ) North, Unnao
shall remain stayed till the next date of listing.
List in Jan. 2001.”
Admittedly in the present case, the application which was
moved by the revisionist under Section 5 of the Limitation Act thereby
had been rejected by order dated 2.9.2000 passed by District Judge,
Unnao in Civil Misc. Case No.136 of 2000. It has been the constant
view of Hon’ble Supreme Court and this Court that the principles of
natural justice must be followed and nobody should be condemned
unheard and if any order is passed without hearing the parties then the
same is violation of principle of natural justice and cannot be sustained
in law so the order dated 2.9.2000 is not sustainable and liable to be set
aside.
Further in the matter of condonation of delay, the Apex Court
has consistently held that pragmatic view should be taken.
In the case of Collector Land Acquisition Vs. Mst. Kati Ji and
others, 1987(13) ALR 306 (SC) Hon’ble Supreme Court held as
follows:-
3
“The legislator has conferred the power to
condone delay by enacting section 5 of the Limitation
Act of 1963 in order to enable the Courts to do
substantial justice to parties by disposing of matter 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
sub-serves the ends of justice – that being the life –
purpose of the existence of the institution of Courts. 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 he decided on merit
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,
common sense and pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other, the cause
of substantial justice deserves to be preferred, for the
other side can not claim to have vested right in
injustice being done because of a non-deliberate delay.
4
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 grapped that the judiciary is
respected not on account of its power to legalise
injustice on technical grounds but because it is
capable of removing injsutice and is expected to do
so.”
In N. Balakrishnan Vs. M. Krishnamurthy,(1998) 7 SCC 133
the Apex Court explained the scope of limitation and condonatin of
delay, observing as under :-
” 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. 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 for the redress of the legal injury so
suffered. The law of limitation is thus founded on
public policy.”
In Smt. Prabha Vs. Ram Praskash Kalra, 1987 (Suppl.) SCC
338 the Supreme Court took the view that the Court should not adopt
an injustice- oriented approach in rejecting the application for
condonation of delay.
In Vedabai alias Vaijayanatabai Baburao Patil Vs. Shantaram
Baburao Patil and others, 2001 (44) ALR 577 (SC) the Apex Court
made a distinction in delay and inordinate delay observing as under:-
” In exercising discretion under section 5 of
the Limitation Act, the Courts should adopt a
5pragmatic approach. A distinction must be made
between a case where the delay is inordinate and a
case where the delay is of a few days. Whereas in
the former case the consideration of prejudice to the
otherwise will be a relevant factor so the case calls
for a more cautious approach…..”
In New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, AIR
1976 SC 237 Hon’ble Supreme Court held that discretion given by
section 5 should not be defined or crystallized so as to convert a
discretionary matter into a rigid rule of law. The expression” sufficient
cause” should receive a liberal construction.
In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575,
the Hon’ble Supreme Court held that unless want bona fides of such
inaction or negligence as would deprive a party of the protection of
section 5 is proved, the application must not be thrown out of any delay
cannot be refused to be condoned.
In O.P. Kathpalia Vs Lakhmir Singh, AIR 1984 SC 1744 the
Hon’ble Supreme Court held that if the refusal to condone the delay
results in grave miscarriage of justice, it would be a ground to condone
the delay.
In view of above said facts, the revision is allowed. The order
dated 2.9.2000 passed by the District Judge, Unnao is set aside, the
matter is remanded back to the District Judge, Unnao to decide the
matter in question after giving opportunity of hearing to the parties
concerned in accordance with law expeditiously say within a period of
three months from the date of receipt of a certified copy of this order.
Order Date :- 5.1.2010
Pramod