Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK C.R.P. No.18 of 2023 In the matter of an Application under Section 115 of the Code of Civil Procedure, 1908 Petitioner *** Pramod Kumar Singh Aged about 50 years Son of Late Purusottam Singh Evening College Road Hill Town/P.O./P.S.: Bhawanipatna … District: Kalahandi. -VERSUS- 1. Bhabani Shankar Singh Deo (dead) (a) Jayashree Singh, aged about 48 years, Wife of Late Bhabanishankar Singh Resident of Habaspur, PS-Junagarh, Munsifi-Dharmagarh, presently residing Near Manikeswari Chowk, PO/PS-Bhawanipatna, District-Kalahandi. (b) Ranbeer Singh, aged about 15 years, Son of late Bhabanishankar Singh his legal guardian is her mother. 2. Bijaya Shankar Singh Deo 3. Sujay Shakar Singh Deo. 4. Kalyan Shakar Singh Deo. 5. All are sons of Late Prasanna Kumar Singh Deo Indira Kumari Devi Wife of Late Prasanna Kumar Singh Deo. All are of Rajvati Karlapat in Manikeswari Chowk P.O./P.S.: Bhawanipatna District: Kalahandi. … Opposite parties. 6. Jyoti Pratap Singh Son of Late Purusottam Singh Village/P.O.: Chiguda, P.S.: Junagarh. C.R.P. No.18 of 2023 Page 1 of 66 7. Anil Kumar Singh 8. Lakeshree Devi. Sons and wife of Late Prabir Kumar Singh At/P.O./P.S.: Berhampur Badkhemundi House Near Guest House District: Ganjam. 9. Narendra Singh Deo Son of Late Pravat Nalini Devi At/P.O./P.S.: Rajvati, Sundargarh District: Sundargarh. 10. Swaroop Singh Deo C/o. Prafulla Kumar Devi Wife of Late Purusottam Singh Resident of Evening College Road (Hill Town) P.O./P.S.: Bhawanipatna District: Kalahandi. …Proforma opposite parties. Counsel appeared for the parties: For the Petitioner : Mr. Amit Prasad Bose, D.J. Sahu, S. Swain, D. Sahoo, D. Sethy and J.K. Padhy, Advocates For the Opposite Party Nos.1, 2, 4 and 5 : Mr. Rajendra Kumar Mund Advocate For the Opposite Party No.3 : In person P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 19.09.2024 :: Date of Order : 13.01.2025 C.R.P. No.18 of 2023 Page 2 of 66 ORDER Being aggrieved by Order dated 28.02.2023 passed by the learned District Judge, Kalahandi, Bhawanipatna, wherein the delay in filing application for restoration of CMA No.13 of 2018, being CMA No.12 of 2021, has been condoned and said CMA No.12 of 2021 is directed to be taken up for hearing, this civil revision petition has been filed by the petitioner with the following prayer: “The petitioner therefore prays that your Lordship‟s may be graciously be pleased to admit this case, call for the records from the courts below and after hearing the parties set aside the Order dated 28.02.2023 under Annexure-1 and thus dismiss the CMA No.12 of 2021 on the ground of limitation. And for this act of kindness the petitioner shall, as in duty bound ever pray.” Facts: 2. Facts, as adumbrated by the petitioner in the Civil Revision Petition, reveal that Late Prasanna Kumar Singhdeo, the predecessor of the present opposite party Nos.1 to 5, had filed Title Appeal No.20 of 1996 and the same was dismissed by the learned District Judge, Kalahandi, Bhawanipatna on 21.10.2009 with the following Order: “Advocate for respondent 4 (Pramod Kumar Singh) filed hazira. No steps taken by the appellants (Prasanna Kumar Singh). The appellants are absent on calls. C.R.P. No.18 of 2023 Page 3 of 66 Hence the appeal is dismissed for default.” 2.1. Thereafter, the present opposite party Nos.1 to 5 (four sons and wife of Prasanna Kumar Singhdeo) filed CMA No.20 of 2009 under Order 41, Rule 19 of the Code of Civil Procedure, 1908 (for short “CPC”) on 28.10.2009 for restoration of Title Appeal No.20 of 1996. Said CMA No.20 of 2009 came to be dismissed for default on 24.12.2015 on the ground that the defects were not removed since 2009. 2.2. Again, the opposite party Nos.1 to 5 filed CMA No.4 of 2016 on 14.01.2016 under Order 41, Rule 19 of CPC for restoration of Title Appeal No.20 of 1996 suppressing the fact of filing of CMA No.20 of 2009 earlier and its dismissal on 13.07.2012 for non-removal of defects. 2.3. Thereafter, opposite party Nos.1 to 5 again filed another CMA No.26 of 2017 under Order 41, Rule 19 of CPC on 08.07.2017 for restoration of Title Appeal No.20 of 1996. Said CMA No.26 of 2017 also got dismissed for non- prosecution on 14.12.2017. 2.4. The opposite party Nos.1 to 5 filed CMA No.3 of 2018 for restoration of Title Appeal No.20 of 1996, which was also dismissed on 19.03.2018. The opposite party Nos.1 to 5 filed CMA No.13 of 2018 on 12.11.2018 for restoration of Title Appeal No.20 of 1996, which was also dismissed for default on 29.10.2019 with the following order: C.R.P. No.18 of 2023 Page 4 of 66 “Advocate for the petitioner files a petition for time for hearing. None is present to move the petition. The petition for time stands rejected being devoid of merits and the C.M.A. is dismissed for default of petitioners.”
Legal Reasoning
2.5. Being aggrieved by the aforesaid order dated 29.10.2019, the opposite party Nos.1 to 5 filed CMP No.1466 of 2019, and this Court and while disposing of the said CMP No.1466 of 2019 passed the following Order on 17.12.2020: “Due to outbreak of COVID 19 this matter is taken up through Video Conferencing.
Legal Reasoning
Heard, Mr. Santosh Kumar Samantaray, learned counsel for the petitioner. The petitioner in this CMP seeks to assail the Order dated 29.10.2019 (Annexure-3) passed by the learned Judge, Kalahandi in CMA No.13 of 2018 arising out of CMA No.03 of 2018, arising out of CMA No.26 of 2017, whereby he dismissed CMA No.13 of 2018 for default. In course of hearing Mr. Samantaray learned counsel for the petitioner submits that interest of justice will be best served if he files an application for restoration of CMA No.13 of 2018, which can be considered in accordance with law. Accordingly, the CMP is disposed of with an observation that in the event the petitioner files an application for restoration of CMA No.13 of 2018, the same shall be considered by learned District Judge, Kalahandi in accordance with law. The delay in filing the restoration application shall be construed liberally taking into consideration the pendency of C.R.P. No.18 of 2023 Page 5 of 66 the CMP from 24.12.2019 till date along with other grounds. Authenticated copy of this order downloaded from website of this court shall be treated at par with certified copy in the manner prescribed in this Court‟s Notice No.4587 dated 25.03.2020.” 2.6. Pursuant to the aforesaid Order dated 17.12.2020, the opposite party Nos.1 to 5 filed CMA No.12 of 2021 accompanied by an application under Section 5 of the Limitation Act, 1963, for condonation of delay. The learned District Judge, Kalahandi at Bhawanipatna condoned the delay in filing CMA No.12 of 2021 vide Order dated 07.03.2022. The petitioner being aggrieved by the said order dated 07.03.2022 preferred CMP No.318 of 2022 before this Court and obtained an interim order of stay of operation of the Order dated 07.03.2022 passed by the learned District Judge, Kalahandi at Bhawanipatna in CMA No.12 of 20211. 1
Decision
CMP No.318 of 2022 [Pramod Kumar Singh and others Vrs. Bhabani Shankar Singh Deo and others] has been disposed of vide Order dated 22.11.2022, with the following observation: “5. This CMP has been filed assailing the order dated 7th March, 2022 (Annexure-1) passed in CMA No.12 of 2021, // 2 // Page 2 of 3 whereby learned District Judge, Kalahandi at Bhawanipatna condoned the delay in filing CMA No.12 of 2021 (wrongly stated as CMA No.13 of 2018 in the impugned order). *** 7. 9. On perusal of the order sheet of CMA No.12 of 2021, it appears that the case was adjourned to different dates, but nothing reveals from the order sheet to suggest that the notice in the petition under Section 5 of the Limitation Act in CMA No.12 of 2021 was ever served on the Petitioner (Opposite Party No.4 therein). In view of the above, this Court has no hesitation to set aside the order dated 7th March, 2022 (Annexure-1) passed by learned District Judge, Kalahandi at Bhawanipatna in CMA No.12 of 2021. Accordingly, the Page 6 of 66 C.R.P. No.18 of 2023 2.7. During pendency of the said CMP No.318 of 2022, the present petitioner (opposite party No.4 in CMP No.1466 of 2019) filed an Interlocutory Application being I.A. No.378 of 2022 to recall the Order dated 17.12.2020 passed in CMP No.1466 of 2019 and this Court while disposing of the said I.A. No.378 of 2022, passed the following Order on 21.09.2022: “1. This matter is taken up through hybrid mode. 2. This is an application for recall of the Order dated 17th December, 2020 by which the CMP was disposed of. 3. Mr. Bose, learned counsel for the Opposite Party No.4 submits that the CMP was filed by suppression of fact. It is averred in paragraph-4 of the CMP that T.A. No.20 of 1996 was dismissed for default on 21st October, 2009. As such, the Petitioner and pro forma Opposite Parties filed CMA No.4 of 2016 under Order XLI, Rule 19, CPC for readmission of the appeal. It is his submission that before filing of CMA No.4 of 2016, the Petitioner and pro forma Opposite Parties had also filed CMA No.20 of 2009, which was also dismissed for non-compliance of the direction of the Court. Said fact was suppressed by the Petitioner in the CMP. Since the Petitioner had not come to the impugned order under Annexure-1 is set aside and the matter is remitted back to the learned District Judge, Kalahandi at Bhawanipatna to adjudicate the petition under Section 5 of the Limitation Act in CMA No.12 of 2021 afresh giving opportunity of hearing to the parties concerned. The Petitioner shall appear before learned District Judge, Kalahandi at Bhawanipatna along with certified copy of this order on 9th December, 2022 to receive further instruction in the matter, as undertaken by Mr. Bose, learned counsel for the Petitioner. 10. With the aforesaid observation and direction, this CMP is disposed of.” C.R.P. No.18 of 2023 Page 7 of 66 Court with clean hand, he is not entitled to a relief of equity. Further, the CMP was disposed of without issuing notice to the Opposite Parties. Had notice been issued to the Opposite Parties therein, the Opposite Party No.4, the present applicant of the I.A., namely, Pramod Kumar Singh, could have thrown light on the conduct of the Petitioner. This Court on a bona fide impression that the averments made in the CMP are correct disposed of the CMP vide order dated 17th December, 2020. He, therefore, prays for recall of the said order and to hear the CMP afresh giving opportunity of hearing to the parties concerned. 4. Mr. Samantaray, learned counsel for the Petitioner submits that non-disclosure about CMA No.20 of 2009 was a bona fide mistake, but the same does not in any way affect the direction made by this Court in the CMP. It is his submission that after disposal of CMA No.4 of 2016 for non-compliance of the Court‟s direction, the petitioner in the CMP also filed several other CMAs which were disclosed in the CMP itself. Thus, there is no reason as to why the Petitioner would suppress the fact of filing of CMA No.20 of 2009. It is his submission that CMP was disposed of with a direction that in the event the Petitioner in the CMP files an application for restoration of CMA No.13 of 2008, the same should be considered by learned District Judge, Kalahandi in accordance with law. It was further directed that delay in filing the restoration application should be construed liberally taking into consideration the pendency of the CMP from 24th December, 2019 till the date of disposal i.e. 17th December, 2020, along with other grounds. Thus, non-disclosure about the C.R.P. No.18 of 2023 Page 8 of 66 information of the aforesaid CMA No.20 of 2009 does not in any way affect the merit of the direction made in the CMP. Hence, he prays for dismissal of the I.A. 5. Heard learned counsel for the parties. Perused the materials placed before this Court. 6. It is admitted by Mr. Samantray, learned counsel appearing for the Petitioner in the CMP that the Petitioner had not disclosed about CMA No.20 of 2009. In all fairness, the Petitioner should have disclosed about the said CMA No.20 of 2009 in the body of the CMP. At the same time, such non- disclosure does not affect the direction made by this Court in the CMP itself. But the fact remains that the Petitioner while filing CMP should take all care and caution so that material facts are placed before the Court for consideration. 7. Since non-disclosure of CMA No.20 of 2009 does not affect the merit of the order dated 17th December, 2020 by which the CMP was disposed of, I am not inclined to grant the prayer made in the I.A. 8. Accordingly, the I.A. is dismissed. 9. However, the Petitioner in the CMP, namely, Sujaya Shankar Singh Deo, should be careful in future in filing petition and affidavit before the Court of law. Urgent certified copy of this order be granted don proper application.” 2.8. The opposite party Nos.1 to 5 filed petition under Section 5 of the Limitation Act in CMA No.12 of 2021 vide Annexure-15 and the present petitioner, who was C.R.P. No.18 of 2023 Page 9 of 66 opposite party No.4 in the said CMA No.12 of 2021 also filed a detailed objection to the petition under Section 5 of the Limitation Act vide Annexure-16. The learned District Judge, Kalahandi, Bhawanipatna, while disposing of the said CMA No.12 of 2021 passed the following Order on 28.02.2023: 2. 2. “This case is remitted back by the Hon‟ble Court to adjudicate the petition under Section 5 of the Limitation Act afresh giving opportunity of hearing to the parties concerned and as per the direction of the Hon‟ble Court, re-hearing of this case has been taken up by giving sufficient opportunity to the parties of this case during which opposite party No.4, Pramod Kumar Singh, appeared through his Advocate and filed his objection. In this case the appellant/petitioner Vijaya Shankar Singhdeo for self and on behalf of other appellants has prayed for condonation of delay in filing the CMA No.13 of 2018 taking assistance of Section 5 of the Limitation Act and to restore the said CMA. The appellant No.1(b) on behalf of other appellants has averred in the petition that the appellants have filed a CMP No.1466 of 2019 before the Hon‟ble High Court of Orissa and the Hon‟ble Court has passed order, dated 17.12.2020 that in the event the petitioner filed an application for restoration of CMA 13 of 2018, the same shall be considered in accordance with law and the delay in filing the restoration application shall be construed liberally taking into consideration the pendency of the CMP from 24.12.2019 till the date with other grounds; C.R.P. No.18 of 2023 Page 10 of 66 and prayed to admit the petition and to condone the delay in filing the CMC. The prayer is supported with affidavit of the petitioner No.1(b). The petitioner no.1(b) filed the downloaded copy of the order dated 17.12.2020 passed by the Hon‟ble Court on in CMP No.1466 of 2019. of for default 3. During re-hearing of this case, the opposite party No.4 filed his written objection challenging the contention raised by the petitioners in the petition and also participated during hearing of the C.M.A. afresh. Learned Advocate for the O.P.No.4 averred that the Title Appeal No.20 of 1996 out of which this CMA No.12/2021 under Section 5 of Limitation Act arises was dismissed the appellants/petitioners; that there was no Covid-19 pandemic situation which prevented the petitioners to prefer this petition and there was no Govt. notification restricting the hearing of the Civil nature proceedings; that the delay of 104 days from 17.12.2020 to 31.03.2021 in view of the order, dated 17.12.2020 of the Hon‟ble High Court of Orissa in CMP No.1466 of 2019 has not been mentioned in the petition for condonation of delay with sufficient cause along with supporting document; and that the Hon‟ble High Court in I.A. No.378/2022 arising out of CMP No.1466 of 2019 have reflected that in all fairness, the petitioner should have disclosed about CMA No.20/2009 in the body of the CMP. He has further contended that there is suppression of material facts and regarding previous dismissal orders in CMA Nos.20/2009, 04/2016 and 13/2018; that till today there is delay of 4179 days for restoration of Title Appeal No.20 of 1996 and the petitioners have intentionally filed the C.R.P. No.18 of 2023 Page 11 of 66 facts, petition for condonation of delay by adopting dilatory tactics. Lastly, learned advocate for the O.P. No.4 submitted that since the petition under Section 5 of Limitation Act is not maintainable as because there is lack of sufficient cause, suppression of inordinate delay and gross material negligence on the part of the petitioners, the same may be rejected by imposing exemplary cost. The learned counsel for the opposite party No.4 has filed the certified copy of order of the Hon‟ble Court in I.A. No.378 of 2022 arising out of CMP No.1466 of 2019. In support of his contention, O.P.No.4 has also relied upon citations in the case of Estate Officer, Haryana Urban Development Authority and another Vrs. Gopi Chand Atreja reported in 2019 (I) CLR (SC) 865 and in the case of Padmabati Behera and another Vrs. Union of India reported in 2011 (II) OLR-1015. The facts and circumstances of the relied upon decisions filed by the opposite party No.4 is different than that of the present case. 4. None of other opposite parties has filed any objection either orally or in written. Neither of the parties has adduced any oral evidence. 5. The Order dated 21.09.2022 of the Hon‟ble Court passed in I.A. No.378 of 2022 arising out of CMP No.1466 of 2019 is as follows: „7. Since non-disclosure of CMA No.20 of 2009 does not affect the merit of the Order dated 17th December, 2020 by which the CMP was disposed of, I am not inclined to grant the prayer made in the I.A. 8. Accordingly the I.A. is dismissed.‟ C.R.P. No.18 of 2023 Page 12 of 66 6. On perusal of the case record and the orders of the Hon’ble Court filed by the petitioner No.1(b) and O.P.No.4, it is noticed that the Hon’ble Court have passed order to the effect that in the event the petitioner files an application for restoration of CMA No.13 of 2018, the same shall be considered by this court in accordance with law; and that the delay in filing the restoration application shall be construed liberally the into pendency of the CMP from 24.12.2019 till date along with other grounds. consideration taking 6. Law is well settled that while considering the petition for condonation of delay, the court is to take a pragmatic approach with the object of administration of justice and not to take a hyper technical view. In the present case also taking a the matter, and more liberal view of particularly, in view of the order of the Hon’ble High Court of Orissa passed on dated 17.12.2020 in CMP No.1466 of 2016, I am satisfied that the delay caused in preferring the appeal was not intentional, rather for reasons beyond control of the petitioner and in the interest of justice, the same deserves to be condoned. However, since the delay must have caused some inconvenience to the opposite parties, they need to be compensated adequately. Hence, it is ordered: ORDER The C.M.A. is allowed on contest against the Opposite Parties subject to payment of cost of Rs.1000/- (Rupees One thousand) to the contesting C.R.P. No.18 of 2023 Page 13 of 66 Opposite Party No.4. Upon payment of such cost by the petitioners to the O.P.No.4 within a period of ten days from the date of this order, delay in filing of the CMA No.12 of 2021 be condoned and hearing of CMA No.12 of 2021 U/s.151 CPC will be taken up. The CMA is disposed of accordingly. Sd/- District Judge, Kalahandi Bhawanipatna” 2.9. Hence, the Civil Revision Petition has been filed by the petitioner challenging the aforesaid impugned order. Objection of the opposite parties: 3. The contesting opposite parties in their Written Statement/Objection while denying the averments made in the Civil Revision Petition, in paragraphs-11 to 15 have stated as follows: “11. That, the petitioner has suppressed the facts and relevant facts throughout the case record that the main suit TS 21/1991 which was disposed in the year 1996 and the opposite party have preferred a appeal over the ex parte order on TS-21/91 on TA-20 of 1996 as the case was proceeding, due to the dismiss due default on removal defect this petitioner cunning filed a case registered under CS-7 of 2003 with the same suit land and the same cause of action and same party the suit was dismissed and the petitioner preferred an appeal over this dismiss suit i.e. CS-7 of 2003 dated 19.01.2010 and preferred an appeal over this dismiss suit which is C.R.P. No.18 of 2023 Page 14 of 66 registered as RFA No-3/54 of 2010-13 (Arising out of the Judgment and decree dated 11.01.2010 passed by the Learned Civil Judge Senior Division on Bhawanipatna on 7 of 2003. This appeal was allowed and the opposite party preferred a regular second appeal in the Hon‟ble High Court of Orissa registered case No.RSA-59 of 2014 which is reserved for judgment for the same scheduled land which is on the TA-20 of 1996 pending in the District and Sessions Judge, Bhawanipatna and the same scheduled land which is pending in the different appeal on RSA 59 of 20142. 2 RSA No.59 of 2014, arising out of appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Kalahandi, Bhawanipatna in RFA No.3/54 of 2010-2013 in setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Bhawanipatna in C.S. No.7 of 2003 in the matter of Sujaya Shankar Singh Deo Vrs. Smt. Puspa Kumari Devi has been disposed of by Judgment dated 10.08.2023 rendered by this Court with the following observation: “10. The Plaintiff claims to have purchased the suit land from her mother(cid:2)in- law (vendor) by registered sale deed dated 23.09.1983 (Ext.7), the Defendants have not challenged the same at any earlier point of time except attacking the same in this suit. The sole Defendant as the Plaintiff had filed Title Suit No.21 of 1991 against his co-sharers including Prafulla Kumari Devi, the vendor of the Plaintiff claiming partition of their joint family property which included the suit land. The suit had been dismissed ex parte with a finding therein that the property involved in the present suit is the exclusive property of Prafulla Kumari Devi which facts stand undisputed. The Yaddast document (Ext.9) reflects the said sale transaction in favour of the Plaintiff and that has also been recorded in the record of right of Bhawanipatna Nazul under Khata No.619 (Ext.12) showing the suit property in the name of the Plaintiffs-Vendor. That apart, the documents Ext.4 to Ext.6 which have been proved by the Plaintiff would show that a portion of the suit house had been let out by the Plaintiff. So with all those documents of title, the Defendants have not been able to establish any sort of rival claim over the suit property when the claim of {{ 8 }} Page 8 of 8 their predecessor-in-interest, i.e., original Defendant that it is the joint family property liable for partition has been negated in the suit filed by him. In that view of the matter, when the vendor of the Plaintiff had the alienable right over the property and she having executed the registered sale deed under Ext.7 neither the Defendants or their predecessor-in(cid:2)interest have challenged the same on any specific ground by filing suit except questioning the authority as above which has been negated and it is only here they for the first time say that it is a created document; the finding of the First Appellate Court that the Plaintiff has the right, title and interest over the suit property and as such entitled to recover the possession of the suit land from the Page 15 of 66 C.R.P. No.18 of 2023 12. That, while the this case was proceeding the petitioner filed an execution case No.4 of 2022 for executing the land of the CS 7 of 2003 on meanwhile the execution was stayed and as the case was proceeding on TA-20 of 1996 on CMA-12 of 2021 and one of the defendant No.1(A) Jyoti Pratap Singh expired and Order 22 Rule 4 of CPC the substitution of the defendant No.1(A) is inserted this petitioner to halt the proceeding of the case for the file a CRP 18 of 2023 and with a IA No.20 of 2023 (arising out of CRP No.18 of 2023) for the stay on CMA 12 of 2021 which is pending in the Court of Learned District Judge, Kalahandi, Bhawanipatna (arising out of TA- 20 of 1996). 13. That, the grounds framed by the petitioner in the CRP No.18 of 2023 are baseless, fabricated and the grounds are the Hon‟ble High Court of Orissa on CMP-1466 of 2019 disposed on 17.12.2020 and with IA No.378 which was disposed on 21.09.2022 and CMP No.318 of 2022 disposed on 22.11.2022 and the petitioner files CRP No.18 of 2023 a hit by the principle of res-judicata and estoppels and acquiescence and similar technical pleas are raised in this CRP 18 of 2023 and as per CPC and hit by the principle of res-judicata estoppels. 14. That, the order dated 28.02.2023 on CMA 12 of 2021 which is annexure-1 by the petitioner at that order which is decided on merit of the court and the facts and court has given view “that the Defendants has to hold the field. The First Appellate Court, therefore, is found to have rightly decreed the suit granting the reliefs as stated therein to the Plaintiff. The substantial questions of law are accordingly answered, which leads for dismissal of the Appeal. In the wake of aforesaid, the Appeal stands dismissed. No order as to cost” 11. C.R.P. No.18 of 2023 Page 16 of 66 circumstances of the relied upon the decision filed by the Opposite Party No.4 is different than that of the present case” in the order it has been clearly stated that the delay in 4179 days are baseless and this court has condoned the limitation on the basis of CMP 1466 of 2019 whereas the petitioner has approached this court with oblique motive and with evil intention to halt the proceed in the proceeding of the case. 14. That, the judgment of a court of concurrent jurisdiction, directly upon the point is, as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another court. It is also true that the judgment of a Court of exclusive jurisdiction directly on the point. Is in like manner. Conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. Section 11 CPC bars the trial of a suit of an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. The question whether the previous decision is correct or erroneous has not bearing on the question whether it operates or does not operate as res- judicata. That the Hon‟ble High Court of Orissa has already adjudicated in CMP 1466 of 2019 order dated 17.12.2020 and on CMP No.378 of 2022 order dated 22.11.2022 and has condemned the CMA of annexure-1 to 14 filed by the petitioner in this CRP 18 of 2023. This petitioner repeatedly filing the CMA to abuse the process of law and there is a miscarriage of law. 15. That the petitioner is suppressing the facts and with oblique motive and with evil design has filed this Page 17 of 66 C.R.P. No.18 of 2023 civil revision just to kill the time of the court, and playing hide and seek in the judicial procedure the exemplary petitioner (compensatory adequately) cost of Rs.5,00,000/- (rupees five lakhs) only to the petitioner for evil intention and suppression of facts.” charged should be Hearing: 4. On being noticed, the opposite party Nos.1, 2, 4 and 5 appeared through their counsel. The opposite party No.3 appeared in person and filed Written Statement/ Objection. Pleadings, being completed and exchanged amongst the counsel for respective parties, on consent of counsel for the parties, the civil revision petition is taken up for final hearing. 4.1. Heard Sri Amit Prasad Bose, learned Advocate for the petitioner; Sri Rajendra Kumar Mund, learned Advocate for the opposite party Nos.1 to 4 and the opposite party No.5 appeared in person. 4.2. After hearing all the counsel for respective parties, the matter is reserved for pronouncement of order. Rival contentions and submissions: 5. Sri Amit Prasad Bose, learned counsel appearing for the petitioner submitted relying on the decision of the Hon‟ble Supreme Court of India in the case of Office of the Chief Post Master General Vrs. Living Media India C.R.P. No.18 of 2023 Page 18 of 66 Ltd., (2012) 1 SCR 1045 = 2012 INSC 105 that petition for condonation of inordinate delay under Section 5 of the Limitation Act in filing CMA No.12 of 2021 under Section 151 of the CPC for restoration of CMA No.13 of 2018 should not have been allowed by Order dated 28.02.2023. 5.1. The learned District Judge failed to exercise his jurisdiction appropriately without bearing in mind the fact that several successive civil miscellaneous applications seeking restoration of appeal have already been dismissed. The delay in toto being around 4179 days since the appeal is dismissed the order condoning the delay in filing the CMA No.12 of 2021 is incongruous to settled principles of law. 5.2. He strenuously argued that the subject appeal has been dismissed since 21.10.2009 and for the laches of the opposite parties the attempts made by them to revive the said appeal could not yield fruitful result. Sri Amit Kumar Bose, learned Advocate demonstrated that the opposite parties being not vigilant are liable to suffer. Vigilantibus et non dormientibus, jura subveniunt which means the laws give help to those who are watchful and not to those who sleep. The law assists those who are vigilant and not those who are indolent. See, Hameed Joharan Vrs. Abdul Salam, (2001) 7 SCC 573. C.R.P. No.18 of 2023 Page 19 of 66 6. Sri Rajendra Kumar Mund, learned counsel for the opposite party Nos.1, 2, 4 and 5 and Mr. Sujay Shankar Singhdeo appearing in-person submitted that no prejudice would ensue to the petitioner if the petition for restoration of CMA No.12 of 2021 is heard on merits by condoning the delay of 104 days for justified reasons. 6.1. This Court in Order dated 17.12.2020 passed in CMP No.1466 of 2019 observed that the delay in filing the restoration application is required to be construed liberally. It is submitted that CMA No.13 of 2018 being dismissed on 29.10.2019, restoration of said case could be filed in the year 2021 because of the intervening pandemic (COVID-19). However this Court considering the plea of the opposite parties passed the order with observation to consider the petition for condonation in filing CMA No.13 of 2018 liberally. 6.2. Essentially, it is submitted that the District Judge, Kalahandi has reasonably construed the delay in filing said civil miscellaneous application and condoned the delay and placed the matter for hearing for consideration of restoration of CMA No.12 of 2021. Consideration of rival contentions and analysis with conclusion: 7. Sri Amit Kumar Bose, the learned counsel for the petitioner (contesting opposite party No.4 before the C.R.P. No.18 of 2023 Page 20 of 66 learned District Judge, Kalahandi at Bhawanipatna) placed heavy reliance on the objection dated 15.02.2023 filed by him to the petition dated 31.03.2021 under Section 5 of the Limitation Act for delay in filing CMA No.12 of 2021, wherein it has been explained as follows: “That the contents of point No.2 of the petition under Section 5 of the Limitation Act are totally false and no supporting documents/order has been filed by the petitioner regarding the limitation period not mentioned in CMP No. 1466 of 2019 vide Order dated 07.12.2020 passed by the honourable High Court Orissa is quite misleading. That the petitioner further submitted in point No.2 of the petition that an Order in CMP No.1466 of 2019 passed by the honourable High Court of Orissa that in the event the petitioner filled an application for restoration of CMA No. 13 of 2018 the same shall be considered by the learned District Judge, Kalahandi in accordance with law and in filing the restoration application shall be delay construed liberally taking into consideration the pendency of CMP from 24.12.20193 till date that is 17.12.2020 along with other grounds. *** That in view of the Order dated 17.12.2020 in CMP No. 1466 of 2019 the limitation period shall be construed liberally from 24.12.2019 till date, i.e., 17.12.2020 along with other grounds. That the CMA No. 13 of 2018 was dismissed on 29.10.2019 (and) till 24.12.2019 there is a delay of 3 Date of filing of CMP No.1466 of 2019 before this Court. C.R.P. No.18 of 2023 Page 21 of 66 56 days of limitation which has not been condoned by the petitioner in accordance with law. That the present petition under Section 5 of the Limitation Act in CMA No.12 of 2021 arising out of CMA No.13 of 2018 was filed on 31.03.2021. That in view of vide Order in CMP No.1466 of 2019 Order dated 17.12.2020 till filing of the limitation petition dated 31.03.2021, there has been a delay of 104 days of limitation period. That the aforesaid delay has not been mentioned in the petition and condoned with sufficient cause along with supporting documentary evidence by the petitioners.” 7.1. From the aforesaid objection, it is necessary to examine whether the discretion has been aptly used coupled with recording satisfaction by the learned District Judge while considering the petition for condonation of delay under Section 5 of the Limitation Act in filing the CMA No.12 of 2012 for restoration of CMA No.13 of 2018. 7.2. It is manifest from record that this Court has passed the Order dated 17.12.2020 in CMP No.1466 of 2019 with an observation to file an application for restoration of CMA No.13 of 2018. As it appears from the web portal of this Court an application being I.A. No.378 of 2022 was filed on 20.04.2022 after disposal of said CMA. Said I.A. came to be disposed of on 21.09.2022, with the following observation: C.R.P. No.18 of 2023 Page 22 of 66 “7. Since non-disclosure of CMA No. 20 of 2009 does not affect the merit of the Order dated 17th December, 2020 by which the CMP was disposed of, I am not inclined to grant the prayer made in the I.A. 8. Accordingly, the I.A. is dismissed.” 7.3. However it is revealed from record that after disposal of CMP No.1466 of 2019 on 17.12.2020 by this Court, the opposite parties have filed a petition being CMA No.12 of 2021 accompanied by an application under Section 5 of the Limitation Act for condonation of delay in filing such CMA. The learned District Judge in view of the observation of this Court in Order dated 17.12.2020 and Order dated 21.09.2022 disposed of the application for condonation of delay in filing CMA No.12 of 2021 vide Order dated 28.02.2023. 7.4. The petition being CMA No.12 of 2021 filed before the learned District Judge along with application for condonation of delay in filing said CMA under Section 5 of the Limitation Act, in view of the discussions made in foregoing paragraphs, this Court does find that the learned District Judge has not considered relevant facts. As is apparent from the record that the opposite parties remained indolent and tried to protract the proceedings. Mere showing that the cause for the delay on account of situation that prevailed during COVID-19 pandemic would not suffice to consider the condonation of delay. Other relevant factors which the District Judge failed to Page 23 of 66 C.R.P. No.18 of 2023 appreciate is that the appeal had been dismissed long since and successive petitions for restoration were also got dismissed for non-prosecution and non-removal of defects much prior to 15.03.2020. 7.5. Scrutiny of record reveals the position of CMA No.12 of 2021 is the 6th petition for restoration. The summary of different proceedings in connection with the appeal in question before the District Judge, Kalahandi is as follows: with petition CMA No. CMA No.12 of 2021 filed for restoration of CMA No.13 of 2018 along for condonation of delay under Section 5 of the Limitation Act CMA No.13 of 2018 arising out of CMA No.3 of 2018 CMA No.3 of 2018 arising out of CMA No.26 of 2017 CMA No.26 of 2017 arising out of CMA No.4 of 2016 CMA No.4 of 2016 arising out of CMA No.20 of 2009 CMA No.20 of 2009 arising out of TA No.20 of 1996 TA No.20 of 1996 Date of dismissal Filed pursuant to Order dated 17.12.2020 of this Court in CMP No.1466 of 2019 IA filed in CMP No.1466 of 2019 for recall of said Order dated 17.12.2020 got dismissed on 21.09.2022. Dismissed for default on 29.10.2019 Dismissed on 19.03.2018 for non-prosecution Dismissed 14.12.2017 Rejected for non-removal of defect on 13.07.2017 Dismissed for default on 24.12.2015 on Dismissed on 28.10.2009 7.6. The situation of COVID-19 pandemic ascribed as reason for the delay in filing CMA No.12 of 2021 may not assist the case of the opposite parties for much prior to commencement of pandemic situation the right had already accrued on the opposite parties. Aforesaid table would suggest that the opposite parties had been lackadaisical in taking care of their own case. Even if as per the Order dated 17.12.2020 passed in CMP No.1466 C.R.P. No.18 of 2023 Page 24 of 66 of 2019 this Court while remitting the matter for fresh consideration requested the learned District Judge to have liberal approach taking into account pendency of the case, there is no explanation forthcoming as to dismissal of appeal and no reason is furnished to demonstrate that notwithstanding bona fide steps being taken, the miscellaneous applications filed for restoration of the application for “restoration petitions” got dismissed. This Court observes that on very many occasions the miscellaneous applications have been dismissed for non-prosecution or non-removal of defects. 7.7. This Court feels it expedient to take note of the fact inter alia that the attempt to revive the appeal by way of CMA No.20 of 2009 got dismissed for default on 24.12.2015 and the restoration application for restoration of appeal got dismissed for non-removal of defects. Subsequent identical petitions for restoration also faced the same consequence. 7.8. Prior to Order passed in CMP by this Court on many occasions the petitions were dismissed for laches of the petitioner. Such vital aspect has not been considered by the District Judge. The dismissal of petitions as is apparent from the above events as given in tabular form are much prior to advent of COVID-19 pandemic. C.R.P. No.18 of 2023 Page 25 of 66 8. It deserves to be observed that “liberal approach” cannot be sacrificed at the altar of “sufficient cause” to be shown by the party seeking condonation of delay. No sufficient cause or reasonable cause has been assigned by the opposite parties. Therefore, the judicial discretion has been applied by the District Judge, Kalahandi in favour of the opposite parties inappropriately and unceremoniously. 8.1. Conspectus of propositions of catena of decisions rendered by different Courts indicates that “discretion” means use of private and independent thought. When anything is left to be done according to one‟s discretion the law intends it to be done with sound discretion and according to law. Discretion is discerning between the right and the wrong and one who has power to act at discretion is bound by rule of reason. Discretion must not be arbitrary. The very term itself stands unsupported by circumstances imports the exercise of judgment, wisdom and skill as contra-distinguished from unthinking folly, heady violence or rash injustice. When applied to a Court of Justice or Tribunal or quasi judicial body, it means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular. Discretion must be exercised honestly and in the spirit of the statute. It is the power given by a statute to make C.R.P. No.18 of 2023 Page 26 of 66 choice among competing considerations. It implies power to choose between alternative courses of action. It is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. [See, Kumaon Mandal Vikas Nigam Ltd. Vrs. Girja Shankar Pant, (2001) 1 SCC 182]. 8.2. In Arjun Singh Vrs. Mohindra Kumar, (1964) 5 SCR 946, these two terms have been considered as follows: “Before proceeding to deal with the arguments addressed to us by Mr. Setalvad— learned counsel for the appellant, it would be convenient to mention a point, not seriously pressed before us, but which at earlier stages was thought to have considerable significance for the decision of this question viz., the difference between the words „good cause‟ for non-appearance in Order IX, Rule 7 and „sufficient cause‟ for the same purpose in Order IX, Rule 13 as pointing to different criteria of „goodness‟ or „sufficiency‟ for succeeding in the two proceedings, and as therefore furnishing a ground for the inapplicability of the rule of res judicata. As this ground was not seriously mentioned before us, we need not examine it in any detail, but we might observe that we do not see any material difference between the facts to be established for satisfying the two tests of „good cause‟ and „sufficient cause‟. We are unable to conceive of a „good cause‟ which is not „sufficient‟ as affording an explanation for non- appearance, nor conversely of a „sufficient cause‟ which is C.R.P. No.18 of 2023 Page 27 of 66 not a good one and we would add that either of these is not different from „good and sufficient cause‟ which is used in this context in other statutes. If, on the other hand, there is any difference between the two it can only be that the requirement of a „good cause‟ is complied with on a lesser degree of proof than that of „sufficient cause‟ and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the court finds in the first proceeding, the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later, where the standard of proof of that matter is, if anything, higher.” 8.3. In Basawaraj Vrs. Special Land Acquisition Officer, (2013) 14 SCC 81 the Supreme Court summarised the law on the issue in the following way: “The law on the issue can be summarised to the effect that where a case has been presented in the Court beyond limitation, the applicant has to explain the Court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay condition without any Page 28 of 66 justification, putting any C.R.P. No.18 of 2023 whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the Legislature.” 8.4. The meaning of „sufficient‟ is „adequate‟ or „enough‟, inasmuch as may be necessary to answer the purpose intended. Therefore, word „sufficient‟ embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. „Sufficient cause‟ means that the party had not acted in a negligent manner or there was a want of bona fide4 on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been „not acting diligently‟ or „remaining inactive‟. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. While deciding whether there is sufficient cause or not, the Court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment 4 Section 2(h) of the Limitation Act, 1963, defines the term “GOOD FAITH” as follows: “GOOD FAITH— nothing shall be deemed to be done in good faith which is not done with due care and attention;” C.R.P. No.18 of 2023 Page 29 of 66 impugned before it. “Sufficient cause” is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application. [Ref.: Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd., AIR 1962 SC 361 = (1962) 2 SCR 762; Lonard Grampanchayat Vrs. Ramgiri Gosavi, AIR 1968 SC 222; Surinder Singh Sibia Vrs. Vijay Kumar Sood, (1992) 1 SCC 70; Orinental Aroma Chemical Industries Ltd. Vrs. Gujarat Industrial Development Corporation, (2010) 5 SCC 459; Parimal Vrs. Veena, (2011) 3 SCC 545; Sudarshan Sareen Vrs. National Small Industries Corporation Ltd., 2013 SCC OnLine Del 4412; State of Bihar Vrs. Kameshwar Prasad Singh, (2000) 9 SCC 94; Madanlal Vrs. Shyamlal, (2002) 1 SCC 535; Davinder Pal Sehgal Vrs. Partap Steel Rolling Mills (P) Ltd., (2002) 3 SCC 156; Ram Nath Sao Vrs. Gobardhan Sao, (2002) 3 SCC 195, Kaushalya Devi Vrs. Prem Chand, (2005) 10 SCC 127, Srei International Finance Ltd. Vrs. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95; Reena Sadh Vrs. Aniana Enterprises, (2008) 12 SCC 589]. 8.5. “Sufficient cause” has to be construed as an elastic expression for which no hard-and-fast guidelines can be C.R.P. No.18 of 2023 Page 30 of 66 prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. [Ref.: G.P. Srivastava Vrs. R.K. Raizada, (2000) 3 SCC 54; A. Murugesan Vrs. Jamuna Rani, (2019) 20 SCC 803]. The Court, in its discretion, has to consider the „sufficient cause‟ in the facts and circumstances of every individual case. Although in interpreting the words „sufficient cause‟, the Court has wide discretion but the same has to be exercised in the particular facts of the case. See, Hira Sweets & Confectionary Pvt. Ltd. Vrs. Hira Confectioners, 2021 SCC OnLine Del 1823. C.R.P. No.18 of 2023 Page 31 of 66 8.6. In Balwant Singh Vrs. Jagdish Singh, (2010) 8 SCR 597 the ingredients of “sufficient cause” for the purpose of condonation of delay has been discussed as follows: “7. 8. *** However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows „sufficient cause‟ for not preferring the prescribed time. The expression „sufficient cause‟ commonly appears in the provisions of Order 22 Rule 9(2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided on similar grounds. The decision of such an application has to be guided by similar precepts. the application within *** the averments contained In the case of P.K. Ramachandran Vrs. State of Kerala, (1997) 7 SCC 556 where there was delay of 565 days in filing the first appeal by the State, and the High Court had observed, into consideration the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition". While setting aside this order, this Court found that the explanation rendered for condonation of delay was neither reasonable nor satisfactory and held as under: „taking in „3. It would be noticed from a perusal of the impugned order that the court has not recorded any satisfaction that the explanation for delay was either reasonable or satisfactory, which is C.R.P. No.18 of 2023 Page 32 of 66 an essential prerequisite to condonation of delay. 4. That apart, we find that in the application filed by the respondent seeking condonation of delay, the thrust in explaining the delay after 12.5.1995 is: 5. „*** at that time the Advocate General‟s office was fed up with so many arbitration matters (sic) equally important to this case were pending for consideration as per the directions of the Advocate General on 2.9.1995.‟ This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub-Judge, Kollam on 30.10.1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on, despite the opinion referred to above, the appeal was filed as late as on 18.1.1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable C.R.P. No.18 of 2023 Page 33 of 66 or satisfactory one had been offered by the respondent-State the inordinate delay of 565 days. condonation of for 6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period limitation on equitable grounds. The of discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned the order application for condonation of delay filed in the High Court would stand rejected and the stand shall first appeal miscellaneous dismissed as barred by time. No costs.‟ is set aside. Consequently, *** 10. Another Bench of this Court in a recent judgment of Katari Suryanarayana Vrs. Koppisetti Subba Rao, AIR 2009 SC 2907 again had an occasion to construe the ambit, scope and application of the expression „sufficient cause‟. The application for setting aside the abatement and bringing the legal heirs of the deceased on record was filed in that case after a considerable delay. The explanation rendered regarding the delay of 2381 days in filing the application for condonation of delay and 2601 days in bringing the legal representatives on record was not found to be satisfactory. Declining the application for condonation of delay, the Court, while the case of Perumon Bhagvathy discussing C.R.P. No.18 of 2023 Page 34 of 66 Devaswom Vrs. Bhargavi Amma, (2008) 8 SCC 321 in its para 9 held as under: „11. The words ‘sufficient cause for not making the application within the period of limitation’ should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words „sufficient cause‟ in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.‟ *** 15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom Vrs. Bhargavi Amma, (2008) 8 SCC 321. In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under: „(i) The words „sufficient cause for not making the application within the period of limitation‟ in a should be understood and applied C.R.P. No.18 of 2023 Page 35 of 66 (ii) the reasonable, pragmatic, practical and liberal manner, depending upon facts and circumstances of the case, and the type of case. The words „sufficient cause‟ in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona tides, deliberate inaction or negligence on the part of the appellant. the courts are more In considering the reasons for condonation of delay, liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For in making example, courts view delays applications in a pending appeal more leniently than delays in the institution of an appeal. The C.R.P. No.18 of 2023 Page 36 of 66 courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant‟s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects. (v) Want of „diligence‟ or „inaction‟ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. *** in contradistinction 16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate for condonation of delay and applications belatedly filed limitation for beyond the prescribed period of Page 37 of 66 applications that C.R.P. No.18 of 2023 to condone the delay bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi(cid:2)benches of this Court have consistently followed these principles and have either allowed or in filing such declined applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must stated ingredients; then alone the Court would be inclined to condone filing of such applications.” the above the delay essentially satisfy the in 8.7. In the case of Pundlik Jalam Patil Vrs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, it is observed as under: “The laws of limitation are founded on public policy. limitation are sometimes described as Statutes of “statutes of peace”. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim “interest reipublicae ut sit finis litium”, that is, the interest of the State requires that there should be end to litigation but at the same time laws of justice limitation are a means suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.” to ensure private C.R.P. No.18 of 2023 Page 38 of 66 8.8. The Hon‟ble Supreme Court of India investigated if “to condone, or not to condone” four days‟ delay, besides examining as to “whether or not to apply the same standard in applying the „sufficient cause‟ test to all the litigants regardless of their personality” in Collector, Land Acquisition, Anantnag Vrs. Mst. Katiji, (1987) 2 SCC 107 = (1987) 2 SCR 387 and laid down the following dicta: “The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to 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 subserves the ends of justice— that being the life-purpose for 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 be decided on merits after hearing the parties. C.R.P. No.18 of 2023 Page 39 of 66 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 pragmatic manner. 4. When and justice substantial 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. 6. 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. 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. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the „State‟ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the „State‟ is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or C.R.P. No.18 of 2023 Page 40 of 66 hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and the philosophy of interpretation of the expression „sufficient cause‟. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits.” the course of the provision in 8.9. In absence of showing deliberate delay as a dilatory tactic, the manner of use of discretion in favour of condonation of delay in filing appeal by the State machinery with due regard to „sufficient cause‟ has been enumerated in N. Balakrishnan Vrs. M. Krishnamurty, (1998) 7 SCC 123 in the following terms: “8. The Appellant‟s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his C.R.P. No.18 of 2023 Page 41 of 66 9. responsibilities, and consequences. to visit him with drastic 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 want of acceptable explanation whereas in certain other cases delay of 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 reversional jurisdiction, unless the exercise of discretion was on whole 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 untrammeled by the conclusion of the lower Court. 10. The reason for such a different stance is thus: the parties and The primary function of a Court is to adjudicate the dispute between to advance substantial justice. 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. C.R.P. No.18 of 2023 Page 42 of 66 11. Rules of limitation are not meant to destroy the right 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. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span 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. interest reipublicae up sit finis litium (it is for the general welfare that a period be putt 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. is enshrined the maxim in It 12. A Court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words „sufficient cause‟ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vrs. Kuntal Kumari, AIR 1969 SC 575 = (1969) 1 SCR 1006 and State of West Bengal Vrs. The Administrator, C.R.P. No.18 of 2023 Page 43 of 66 13.