Babu Lal Yadav v. M/S R S Yadav and Anr

Order XXXVII of the CPC.

14.

It is trite that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act, 1963 does not prescribe that such a discretion can be exercised by the Court only if the delay is for a certain period of time, rather the length of delay is hardly relevant. What is to be considered is the explanation offered for the delay. Thus each case has to be examined in its own facts and as long as there is a satisfactory explanation offered for the delay, the Court is well within its powers to accept the explanation and condone the delay. Merely because the title of the application does not reflect the correct position of law, can also not be a ground to oust a party. What has to be examined is the explanation offered in the application and the relief sought. In other words, substantial justice cannot be permitted to be sacrificed at the alter of technicalities. In the case of N.Balakrishnan Vs. M.Krishnamurthy reported as (1998) 7 SCC 123, the Supreme Court relying on its earlier decisions in the case of Shakuntala Devi Jain Vs. Kuntal Kumari reported as (1969) 1 SCR 1006 and State of West Bengal Vs.Administrator, Howrah Municipality reported as

(1972) 1 SCC 366, held that the words" sufficient cause" as mentioned in Section 5 of the Limitation Act, 1963 ought to receive a liberal construction so as to advance substantial justice for `court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause'. It was further observed that "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 dilatory strategy, the Court must show utmost consideration to the suitor". It was also observed as under:

¶9It 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.

¶10The reason for such a different stance is thus: 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.

¶11Rules 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."(emphasis added)

¶15In the case of HDFC Vs Anil Laul reported as 85(2000) DLT 343, while condoning the delay on behalf of the defendant entering appearance, a

Single Judge of this Court observed as below: "Para 4: It is correct that under Order 37 of the Code, on receipt of summons in Form IV Appendix B the defendant is required to enter appearance within 10 days from the date of service of summons upon the defendant. But this Court can also not ignore the fact that when summons are received by a layman who has hardly appeared in Court, he can be misled by the date which is mentioned on the summons. A perusal of the summons shows that the party was informed that the matter will be taken up by the Court on 20th July, 1999. No mala fides have been imputed to the defendant nor any reason has been shown as to why the defendant who wants to contest the suit would not enter appearance in case he was aware that on not filing appearance within 10 days decree will be passed against him. At best it can be a case of casual approach of the defendant to the whole matter. However, it cannot be said that the mistake on the part of the defendant in not entering appearance within 10 days was not bona fide. It can also not be said that by writing the date of 20th July, 1999 on the summons when the defendants were informed that the matter will be listed before the Joint Registrar, the defendant was not misled. In my view, therefore, there is sufficient cause for not entering appearance within time and a good cause has been shown for the delay in entering appearance. I accordingly allow this application subject to payment of Rs.1,000/- as costs and condone the delay in entering appearance by the defendant. No further orders are required to be passed on this application and the same stands disposed of. " (emphasis added)

16.

In the case of Hector M.Mehta Vs. CRB Capital Markets Ltd. reported as 98(2002) DLT 127, a Single Judge of this Court held as follows: "Para 4: As per the provisions of Order XXXII Rule 3 Sub-rule (7) CPC, the Court may excuse the delay in entering appearance for sufficient cause shown by the defendant. The words "sufficient cause" though have not been defined but have been interpreted by the Supreme Court in a catena of judgments in

reference to Section 5 of the Limitation Act. It is held in a number of judicial pronouncements that the words "sufficient cause" should be liberally construed so as to advance substantial justice. The Supreme Court in

(1998) 7 SCC 123, N. Balakrishnan v. M. Krishnamurthy, held that in the absence of anything showing malafides or deliberate delay as a dilatory tactic, Court should normally condone the delay. It has also been held that length of delay is not material, acceptability of the explanation is the only criterion as sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is found satisfactory. It is held that there is no presumption that delay in approaching the Court is always deliberate. "(emphasis added)

17.

In the present case, no mala fides have been imputed to the respondents, nor has any reason been shown as to why the respondents would not want to contest the suit, in case they were aware of the fact that in the event of their failure to appear within ten days, a decree would be passed against them. It can also not be said that the mistake on the part of the respondents for not entering appearance within ten days, was not bona fide. The explanation offered by the respondents in their application was that they were unaware of the technicalities involved in a summary suit and contacted his counsel only two days prior to the date fixed before the Court. The counsel filed his vakalatnama on the said date. The learned Additional District Judge has accepted the explanation offered by the respondents as `sufficient'. The trial court having so exercised its discretion in favour of the respondents, this court is not inclined to disturb such a finding as the exercise of discretion by the trial court has not been assailed on the ground that it is wholly untenable or so adverse or arbitrary that it cannot stand.

Rather, a perusal of the impugned order shows that the trial court has duly taken into consideration the fact that no formal application for appearance was filed by the respondents, though the application for seeking condonation of delay was filed and thus, the delay was condoned, subject to payment of costs of Rs.1,000/-.

18.

The contention of the counsel for the petitioner that there is a contradiction in the earlier order dated 4.9.2009 and the order dated

10.9.2009, is also untenable. On 4.9.2009, the Court did notice that the formality of entering appearance in terms of the requirement of Order XXXVII was not complied with by the respondents, but on the said date, the application filed by the respondent for condonation of delay was not considered or disposed of. Rather, the matter was adjourned to 10.9.2009, on which date, after hearing the parties, the impugned order came to be passed, whereby the delay was condoned and the respondents were mulcted in costs.

19.

Assuming that there is some ambiguity in the meaning of the words "enters an appearance", as mentioned in sub-rule(3) of Rule 2, this Court would prefer to be guided by the interpretation given to the said provision in the case of Arjan Lal Verma Vs. Smt.Rawel Kaur reported as AIR 1982 DELHI 148, wherein a Single Judge of this Court observed as below: "5. I do not agree with this argument. Sub-rule (3) of R.2, the relevant part of which I have already quoted, prohibits a defendant from defending the suit 'unless he enters an appearance'. Sub-rules (1) and (3) of R.3 indicate that entering appearance is one thing, filing an address for service another and giving notice of appearance to the plaintiff or his counsel a third. Sub-rule (3) of R.2 has nothing to say as to the effect of non-compliance with the second and third

requirements. In accordance with the principle of harmonious construction, the words `enters an appearance' in that sub-rule must be read in the same sense as is derived from sub-rules (1) and

(3) of R.3. Those sub-rules lead irresistibly to the conclusion that entering an appearance does not of itself involve or import the filing of an address for service in court or serving notice of such appearance on the plaintiff or his counsel. For, otherwise, those two requirements would not have been stated additionally and separately. And, even supposing there is some ambiguity in the meaning of the words 'enters an appearance' in sub-rule (3) of R.2 (which I do not concede), I think, they must be given a narrow and restricted meaning considering that the right of the defendant to defend the suit is at stake…." (emphasis added)

20.

For the aforesaid reasons, this Court does not find that the learned ADJ has acted in the exercise of its jurisdiction illegally or with material irregularity. Nor is there any illegality, arbitrariness or perversity in the impugned order which deserves interference. The impugned order is confirmed. The petition is dismissed, with no orders as to costs.

(HIMA KOHLI) JUDGE FEBRUARY 22, 2010

rkb/mk

* IN THE HIGH COURT OF DELHI AT NEW DELHI + C.R.P. 130/2009 Reserved on : 09.02.2010 Pronounced on: 22.02.2010 IN THE MATTER OF : BABU LAL YADAV ..... Petitioner Through: Mr. Ram Singh Soni, Advocate versus M/S R.S. YADAV & CO. & ANR. ..... Respondents Through: Nemo CORAM * HON'BLE MS.JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may Yes be allowed to see the Judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? HIMA KOHLI, J. 1. In the present revision petition, challenge has been laid by the petitioner to an order dated 10.09.2009 passed by the learned ADJ, allowing the application for condonation of delay filed by the respondents (defendants in the court below) in a summary suit for recovery filed by the petitioner (plaintiff in the court below) under the provisions of Order XXXVII CPC, subject to payment of costs of Rs.1,000/-. Before proceeding to deal with the grounds taken by the petitioner to assail the impugned order, it would be necessary to briefly advert to the sequence of events resulting in passing of the said order. 2. On 19.05.2009, the petitioner (plaintiff in the court below) instituted a summary suit under Order XXXVII CPC praying inter alia for a decree of Rs.5,40,000/- with interest against the respondents (defendants in the court below). The aforesaid suit was registered by the learned ADJ on 20.05.2009 and summons were directed to be issued in the prescribed format to the defendants on filing of process fee and registered cover, returnable on 31.07.2009. A perusal of the trial court record shows that while the respondents/defendants remained unserved by ordinary process, service was duly effected on them by Registered Post. A perusal of the Registered AD covers placed on the record shows that the same were dispatched from the post office at Patiala House, New Delhi on 25.05.2009, but the date of receipt of the summons is not indicated on the AD covers. 3. On 31.07.2009, counsels for the parties were present in Court. Counsel entered appearance on behalf of the respondents/defendants and prayed for some time to file the written statement. The order dated 31.07.2009 is reproduced hereinbelow:- "Suit No.756/09 Present: Counsels for the parties Defendants have been duly served in this case. Sh. Raj Kumar Yadav has put in his appearance on behalf of defendants and prays for some time to file the WS. Let the same be filed by next date of hearing i.e. 20.08.09. (Ina Malhotra) Add. District Judge South-II PHC: New Delhi 31.07.09" The record reflects that a Vakalatnama dated 31.07.2009, on behalf of the respondents/defendants was duly filed on the same date. 4. On 31.07.2009, counsel for the petitioner/plaintiff filed an application under Order XXXVII Rule 2(3) CPC, stating inter alia that as the respondents/defendants had not entered appearance within the stipulated period of ten days from the date of service of the summons upon them, the petitioner/plaintiff was entitled to a decree for the sum, mentioned in the plaint. He submitted that as the suit had been filed under the provisions of Order XXXVII CPC, counsel for the respondents/defendants had wrongly taken time to file the written statement. Vide order dated 4.8.2009, notice of the aforesaid application was issued to the respondents/defendants through counsel, returnable on the date fixed, i.e., 20.08.2009. On 20.08.2009, counsels for the parties were present. As notice of the aforesaid application filed by the petitioner/plaintiff could not be served upon the defendants' counsel, the same was accepted by him in Court and the matter was adjourned to 04.09.2009 for arguments. 5. On 04.09.2009, the respondents/defendants submitted their reply to the application filed by the petitioner/plaintiff under Order XXXVII Rule 2(3) CPC. They also filed an application for condonation of delay in entering appearance in the suit on the same date. The learned ADJ passed the following order :- "Suit