IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.283 of 1987
Md. Ayub Ali & Ors
Versus
Alamgir Khan & Ors
----------------------------------
ORDER
17. 13.10.2011. I have heard the learned counsel for the
appellant on interlocutory application No.6262 of 2011.
(2) This application has been filed under Order
22 Rule 3 and 11 of the Code of Civil Procedure read with
Section 5 of the Limitation Act by the appellant. It is
stated that appellant No.5, Bibi Mehrun Nisa died on
10.06.2008 leaving behind the legal representatives as
mentioned in detail in paragraph 1 of the said application.
The interlocutory application has been filed on
12.09.2011.
(3) At paragraph 4, it has been stated that the
deceased appellant No.5 was living with her husband,
Sheikh Abbash at Pirpaiti and doing business. Appellants
as such were not aware about the pendency of the appeal
in this Hon’ble Court. Likewise at paragraph 5, it has
been stated that recently appellants during Ramzan came
after years to Patna and knew about pendnecy of the
appeal and appearing by filing this application.
Therefore, it was prayed for condoning the delay and also
for setting aside abatement.
(4) In view of the above facts stated in the
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application, the only explanation given is that the
appellants were not knowing the pendency of this appeal.
(5) From perusal of the memo of appeal, it
appears that there are 7 appellants. Appellant No.1 to 3
are the sons and appellant No.4 to 7 are the daughters of
late Md. Yaqub. Out of them only appellant No.5 died.
The other defendants did not take any steps for
substitution. The ground for delay has been stated that
the appellants were not knowing about the pendency of
the First Appeal. Except this explanation regarding delay
of 3 years, there is no explanation. There is no
explanation as to why the other appellants did not take
any step for substitution. It is not reliable that the heirs
of appellant No.5 were not knowing about the pendency
of the present appeal because of the fact that the
appellant No.5 was closely related to the other
appellants.
(6) The Apex Court in 2009 (2) Supreme
Court cases 689 R.B. Ramlingam Vs. R.B.
Bhubneshwari has held that Section 5 of the
Limitation Act, 1963 does not lay down any
standard or objective test. The test of “sufficient
cause” is purely an individualistic taste. It is not
an objective test. Therefore, no two cases can be
treated alike. The statute of limitation has left the
concept of “sufficient cause” delightfully undefined
thereby leaving to the Court a well intentioned
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discretion to decide the individual cases whether
circumstances exist establishing “sufficient cause”.
There are no categories of “sufficient cause”. The
categories of sufficient cause are never exhausted. Each
case spells out a unique experience to be dealt with by a
Court as such.
(7) No doubt, it is well settled principle of law
that this provision, i.e., Section 5 of the Limitation Act,
1963 should be construed liberally. The Court has to
place itself in the position of the person concerned and
find out if the delay can be said to have resulted from the
cause which he has adduced and if it can be recorded as
sufficient cause.
(8) In 2010 (8) Supreme Court cases 685
Balwant Singh (dead) Vs. Jagdish Singh and Ors,
the Apex Court at paragraph 32, 33, 34 and 35 has held
as follows :
“32. It must be kept in mind that
whenever a law is enacted by the legislature, it is
intended to be enforced in its proper perspective.
It is an equally settled principle of law that the
provisions of a statute, including every word, have
to be given full effect, keeping the legislative
intent in mind, in order to ensure that the
projected object is achieved. In other words, no
provisions can be treated to have been enacted
purposelessly.
33. Furthermore, it is also a well-settled
canon of interpretative jurisprudence that the
Court should not give such an interpretation to the
provisions which would render the provision
ineffective or odious. Once the legislature has
enacted the provisions of Order 22, with particular
reference to Rule 9, and the provisions of the
Limitation Act are applied to the entertainment of
such an application, all these provisions have to
be given their true and correct meaning and must
be applied wherever called for. If we accept the
contention of the learned counsel appearing for
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liberal approach and interpret these provisions
(Order 22 Rule 9 CPC and Section 5 of the
Limitation Act) in such a manner and so liberally,
irrespective of the period of delay, it would
amount to practically rendering all these
provisions redundant and inoperative. Such
approach or interpretation would hardly be
permissible in law.
34. Liberal construction of the expression
“sufficient cause” is intended to advance
substantial justice which itself presupposes no
negligence or inaction on the part of the applicant,
to whom want of bona fide is imputable. There
can be instances where the Court should condone
the delay; equally there would be cases where the
Court must exercise its discretion against the
applicant for want of any of these ingredients or
where it does not reflect “sufficient cause” as
understood in law.
35. The expression “sufficient cause”
implies the presence of legal and adequate
reasons. The word “sufficient” means adequate
enough, as much as may be necessary to answer
the purpose intended. It embraces no more than
that which provides a plentitude which, when
done, suffices to accomplish the purpose intended
in the light of existing circumstances and when
viewed from the reasonable standard of practical
and cautious men. The sufficient cause should be
such as it would persuade the Court, in exercise of
its judicial discretion, to treat the delay as an
excusable one. These provisions give the courts
enough power and discretion to apply a law in a
meaningful manner, while assuring that the
purpose of enacting such a law does not stand
frustrated.
(9) Therefore, in view of the settled principle of
law laid down by the Apex Court, the party should show
that besides acting bonafide, it had taken all possible
steps within its power and control and had approached
the Court without any unnecessary delay. The test is
whether or not a cause is sufficient to see whether it
could have been avoided by the party by the exercise of
due care and attention.
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(10) In 2008 (17) Supreme Court cases 448
Pundlik Jalam Patil (dead) Vs. Executive Engineer,
Jalgaon Medium Project and Anr., the Apex Court at
paragraph 14 has held as follows :
“14. It is true that the power to condone
the delay rests with the Court in which the
application was filed beyond time and decide
whether there is sufficient cause for condoning
the delay and ordinarily the superior Court may
not interfere with such discretion even if some
error is to be found in the discretion so exercised
by the Court but where there is no sufficient cause
for condoning the delay but the delay was
condoned, it is a case of discretion not being
exercised judicially and the order becomes
vulnerable and susceptible for its correction by
the superior court. The High Court having found
that the respondent in its application made
incorrect submission that it had no knowledge of
the award passed by the Reference Court ought to
have refused to exercise its discretion. The High
Court exercised its discretion on wrong principles.
In that view of the matter, we cannot sustain the
exercise of discretion in the manner done by the
High Court.”
(11) In this aforesaid decision at paragraph 12,
the Apex Court has held that “in our considered
opinion incorrect statement made in the application
seeking condonation of delay itself is sufficient to
reject the application without any further inquiry as
to whether the averments made in the application
reveals sufficient cause to condone the delay.
(12) In the present case as stated above, the
only explanation given is that the appellants have no
knowledge about the pendency of the appeal. This
explanation is not acceptable. It appears to be false
statements and this statement has been made with a
view to get the delay condoned. It is well settled that
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this provision should, no doubt, be construed liberally but
at the same time, the Court must see that no litigant
should be allowed to take undue advantage of the liberal
construction of the provision by the Court. In my
opinion, therefore, this explanation given by the appellant
is not sufficient cause for condoning the delay. The
conduct of the appellants shows their laches and inaction.
I, therefore, find that the appellants have failed to prove
the sufficient cause for not filing the substitution
application within the period prescribed. Accordingly, the
application for substitution filed by the appellant is
rejected as barred by limitation and, therefore, the
abatement cannot be set aside. Hence, it is held that the
Appeal has abated against the heirs of the appellant
No.5.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 13thday of October, 2011
Sanjeev/A.F.R.